Law and Public Policy

Can Congress Sue the President? And Other Questions of Executive Power

July 21, 2014  • Catherine Lutz, Guest Blogger

Above, watch the full conversation of The Susman Conversation on the Constitution and the Courts: Executive Power and the Constitution.

Two prominent constitutional law experts debated President Barack Obama’s use of executive orders — and the reaction to them — during the recent, spirited Susman Conversation on the Constitution and the Courts at the Aspen Institute in Aspen, Colorado. The Susman Conversation is an annual event generously underwritten by Ellen Susman in honor of her husband, Steve Susman.

Harvard University law professor Charles Ogletree, Jr. and Miguel Estrada, a partner at Gibson, Dunn, and Crutcher, disagreed on whether the US House of Representatives could win a potential lawsuit against Obama for usurping legislative authority over the Affordable Care Act by delaying the employer mandate until 2015. Ogletree, an unabashed Obama supporter, wouldn’t bet on it, while Estrada, a controversial appellate court nominee by President George W. Bush, who failed to reach confirmation due to a Democratic filibuster, said he believed the House would most likely win.

Whether Congress has the standing to sue the president in the first place, however, is a different story.

“This would be a very difficult lawsuit to frame because of a number of legal doctrines,” said Estrada, who added that courts are usually asked to look at cases of injury, and “it’s not obvious how members of the House are injured by the president’s failure to comply with the law.”

On the larger issue of whether Obama overstepped his bounds on the Affordable Care Act implementation, Estrada firmly believes he did.

“You can’t say you’re going to pass something and then fix it on the fly, disregarding what the statute says,” which, in this case, was a December 31, 2013 deadline for implementation of the employer mandate, said Estrada.

Ogletree argued that the president has the power granted by the executive office “to do what needs to be done” and will continue to do so, despite legal threats, because Republicans in Congress are otherwise blocking everything he and other Democrats bring forward.

“I think he’ll continue to push pedal to the metal,” Ogletree said.

Reacting to Ogletree’s criticism of a do-nothing Congress, Estrada argued that the political system is, in some ways, working as it was intended.

“In 1789, the people who wrote the Constitution said the government is best that governs the least,” said Estrada. “What’s happening is less the political… but you have a country that is divided 50-50, and that’s reflected in Congress. That’s intended, that a minority in the system has the ability to slow things down until there is consensus.”

Noting that Obama has issued executive orders relaxing some rules on illegal immigration (and especially for child immigrants), to grant waivers for No Child Left Behind Act requirements, and on certain climate change issues, moderator Jeffrey Toobin of The New Yorker asked Ogletree and Estrada if the president has been more aggressive than his predecessors in using executive power, or whether it was just spin by his political opponents.

Neither answered the question directly.

“It’s clearly not spin, but the reality is this president has had to face Congress and do things that he thinks are favored by a majority of the people,” said Ogletree. “He has to do things the Legislature has decided not to do.”

“The truth is, all presidents try to be very muscular about executive power,” said Estrada, who referred to President Franklin Roosevelt’s controversial-at-the-time Lend-Lease Act of 1941. “The question for us is would we like to preserve the structure of the Constitution that says whoever the executive is, whether you like him or not, he has limits.”

(According to a July 10 Washington Post analysis, Obama has signed the least amount of executive orders out of the last 10 presidents, an average of under 34 per year, compared to 36 by his immediate predecessor, Bush, and at the other extreme, 80 by President Jimmy Carter.)

The real question, Ogletree suggested, is what are the long-term impacts of a president’s executive decisions on the country. Both Democrats and Republicans have been criticized for their use of executive power, but “we can’t decide a president’s significance until 30 or 40 years after he has served,” he said.