

Speaker Boehner’s memo to his members, June 25.

Presidential power has been back in the spotlight over the past week or so, from last Thursday’s recess appointment decision to House Speaker John Boehner’s proposed lawsuit over executive actions to the June 30 announcement by the president that he would pursue administrative remedies to immigration issues in the absence of wider reform legislation.

In his own news release Monday, Boehner sought to connect the dots: “As the Supreme Court reminded us this week, under our Constitution, there are sharp limits to what the president can accomplish if he ignores the American people and their elected representatives.” Obama’s response Tuesday was blunt: “So sue me.”

Boehner was presumably referencing that day’s Hobby Lobby decision along with the recess appointment case. (John Yoo, expert in executive overreach, sees both cases as refutations of just that.) But Boehner might do better to read a portion of another case more widely touted as a triumph for the Environmental Protection Agency, dealing with the regulation of greenhouse gas emissions. The Utility Air Regulatory Group decision (by a 7 to 2 vote) upheld much of EPA’s regulatory framework but struck down (by a 5 to 4 vote) its efforts to rewrite Clean Air Act thresholds. “An agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate,” Justice Scalia wrote there.

That doctrine strikes me as a good way to delineate the proper bounds of presidential unilateralism. The only problem for the House is that it undermines much of the basis of Boehner’s proposed lawsuit.

To back up a bit … in an essay recently published in The Forum titled “The Letter of the Law,” I argue a variant of Scalia’s point. Where there are clear statutory terms, the president and his subordinates must abide by them. The law, as interpreted by president or agency, might actually be a better law – had it been passed that way. But in 1997, overturning the Line Item Veto Act, the Supreme Court declined to “authorize the President to create a law whose text was not voted on by either House or presented to the President for signature.” Changing the threshold for pollution violations — or the effective date of a health care mandate? — may make for more sensible law. But it is not the law that was passed.

However, as Alexander Hamilton long ago observed, “he who is to execute the laws must first judge for himself of their meaning.” Not surprisingly, presidents tend to find that meaning in line with their own preferences. And this is enabled by the fact that the law often has many, and vague, possible letters. “Laws are blunt instruments,” one Bush appointee has observed, “and no law is perfect. Most consist of vague language and conflicting provisions, embrace nonspecific purposes, and lead to unintended consequences.” Congress passes statutes that grant immense discretionary authority to the executive branch, which can be utilized via regulation, waiver, or other administrative actions (such as the de facto implementation of the DREAM Act in 2012 via departmental memorandum.)

Indeed, there may be good reasons for Congress to delegate in this manner. Most basically, of course, complicated issues require complicated statutes; circumstances can change rapidly; and there is a positive value placed on federalism, which may make it sensible to deviate from a “one size fits all” mandate. In our system it is difficult to pass laws in the first place. And under a variant of Newton’s first law, statutes once in place, tend to remain in place. Thus presidents obtain continuing authority to act over time. The power to conserve land via its designation as a “national monument” came from a 1906 law; Obama’s push to increase the minimum wage and overtime pay in 2014 rested on authority granted to presidents back in 1938.) Presumably the architects of No Child Left Behind didn’t expect it to go unamended seven-plus years after its scheduled reauthorization, greatly enhancing the president’s waiver leverage. And so on. Further, the executive branch has prosecutorial discretion in many areas. And presidents have worked hard, though not always successfully, to bring the regulatory powers vested in departments and agencies within the White House’s control.

If this is a problem — and I think it can be — the solution is for Congress to change the law to remove presidential discretion. It is legislators, not judges, who need to set and adjust the boundaries on what the Bush administration once called its “zone of autonomy.” Congress already has the power to rein in presidential action through the ordinary legislative process – to specify less freedom of action, to rule out waivers, even to fail to appropriate funds to support the affected agencies. The memo suggests litigation would only come in cases where “there is no legislative remedy.” But this would involve a tiny fraction of the charges of presidential imperialism raised by the House in the past.

Boehner’s lawsuit memo does get the challenge right: “At various points in our history when the Executive Branch has attempted to claim for itself the ability to make law,” he writes, “the Legislative Branch has responded, and it is only through such responses that the balance of power envisioned by the Framers has been maintained.” He speaks in other places of “strong action by the House,” and of “stand[ing] up on behalf of the people to stop the encroachment of executive power.” Yet it is distressing that the “strong action” he has in mind consists not of actually legislating — which would of course involve the inconvenient chore of persuading the Senate to act — but of pleading for external interbranch intervention.

There will be areas for litigation, to be sure — cases similar to the EPA’s rewrite of law in the guise of regulatory interpretation. The recess appointment case is more likely a one-off. There, the Obama administration managed to actively invite a strong judicial rebuke — by meddling in the Senate’s own zone of autonomy. (I am gratified to remind readers that I predicted in January that the court would uphold the Senate’s position against the president but not the Circuit Court’s overly broad reasoning.)

But in most cases, Obama’s taunt will probably hold up in court. So where progress and not press coverage is the goal, the answer lies in the old arts of deliberation and compromise — across the chambers and across the branches. As it stands, the bruited lawsuit shows not an active Congress but, once again, an invisible one.