On Tuesday evening, I attended an event at the Heritage Foundation entitled “An Imperial Presidency,” headlined by Congressman Bob Goodlatte (R-Va.), the Chairman of the Judiciary Committee, which has jurisdiction over immigration.
In his speech, Chairman Goodlatte explained that the House of Representatives is suing President Obama over his unilateral actions involving the Affordable Care Act (“Obamacare”) because House leadership believes that they must establish the principle that the President cannot rule by decree as he has been on a number of issues. The “Take Care” clause in Article II of the Constitution, which empowers the President to “take care that the laws be faithfully executed,” is a matter of duty, not discretion, Chairman Goodlatte explained. But the hardest part of the lawsuit will be establishing that a chamber of Congress has the standing to sue at all. The House has passed a bill ensuring that a chamber of Congress would have such standing, the “Enforce the Law Act,” he said.
In the question and answer session following his speech, Chairman Goodlatte said more about the President’s unilateral amnesties specifically, a topic of substantial interest to the audience. He explained that House leadership did give consideration to including the President’s Deferred Action for Childhood Arrivals (DACA) policy in the lawsuit, and that if they establish the principle that the House can sue, it will challenge more unilateral actions, as they need to address immigration as well as the President’s actions on the drug laws. He also said that he believed that Congress has not utilized the Courts “aggressively” enough, and so separation of powers has become very shaky right now. The lawsuit the House has already filed is the first step of a “step by step” process to curb executive abuses, he explained, because establishing standing is the first step to ultimately deal with the President’s other abuses. While he did not elaborate how Congress could have been more aggressive, he may have meant that the House should have taken that first step, trying to establish standing through a lawsuit, as soon as the President overstepped his authority.
However, he said, should the President follow up in the near future with additional “major” abuses of power, one of which would be the “dramatic expansion” of unlawful and unilateral amnesties, that would call for an “immediate response.” He suggested that this response might take the form of going to Court and asking for an emergency injunction to stop the unilateral amnesty. He acknowledged, however, that the Courts could drag out the process of hearing until past the end of the President’s term, meaning it would not be an effective way of addressing the issue. While he mentioned that the “Enforce the Law Act” expedites the legal process to a few months, of course, that bill is not currently law, leaving the prospect of litigation as a way to curb the President’s executive overreach quite murky.
Given the difficulties a lawsuit would present at holding the President accountable, I asked if stopping the President through appropriations and not just a lawsuit is also on the table. In response, Goodlatte said that the power of the purse is “always” on the table. However, he implied that if one chamber of Congress refuses to use the power of the purse to rein in the Executive branch, it is difficult for the other to do so alone. If the Republicans should take the Senate, appropriations would therefore be a more likely option for the Republicans to pursue, he hinted.
Chairman Goodlatte also stated that the President’s threat of unilateral actions is what is preventing legislation from happening on immigration: “we all believe in immigration reform,” he said, but when the President claims that he can do it on his own, those who agree with him don’t think they need to enter into negotiations about what needs to be done to enforce the law.
It should be noted that funding for the government will currently run out on December 11, during the lame duck period. The President has suggested that he will act before the “holidays,” which he could easily stretch to mean as late as December 24. That date would be after Louisiana’s potential runoff election on December 6, and after an appropriations bill is passed, if the lame duck Congress passes one before funding runs out. The question for true immigration reform supporters to ponder is therefore, especially if the Republicans win a majority in the Senate in November, will they pass an appropriations bill funding the government for a year right before the President reveals his hand on what unilateral amnesties he will decree? To do so would remove what leverage they have through the power of the purse until that appropriation expires. Or will they pass a short term continuing resolution funding the government only until January? Based on this panel, the answer is still undetermined.