While there have been countless articles written on the House efforts to sue President Obama, few commentators have opined on the likely impact(s) of the House lawsuit on national security law. As this “effort” on the part of the House, and more specifically Speaker John Boehner, is at heart a question of separation of powers, this lack of coverage is surprising and disturbing.
To recap briefly, the proposed lawsuit, supported largely along party lines just before Congress took a five week recess, is targeted at President Obama’s purported executive overreach in unilaterally altering provisions in the Affordable Care Act.
The foremost question concerns the consequences of the House’s decision to turn to the courts by filing a lawsuit, rather than using more traditional powers of the legislative branch. There are, in essence, three possible outcomes: the House lawsuit will result in a “win” for the House GOP; the House lawsuit will result in a “loss” for the House GOP; and, perhaps the most likely outcome, the lawsuit will never reach the courtroom for lack of standing. Each of these outcomes may have a deleterious impact on the future role of Congress in national security policy.
If the House gets a favorable final judicial outcome, there is a potential pitfall for Congress, as I’ve noted elsewhere: that the president will ignore the outcome. While this seems unlikely, presidents have previously ignored judicial decisions. If, in this instance, the president were to ignore judicial fiat that was initiated by the House, checks and balances, as envisioned by the Framers of the Constitution, would be at a nadir, since both the judicial and legislative branches had tried but failed to limit the president.
If the House loses, which I suspect it will if the case makes its way to the Supreme Court, the president would have the legal support of the judiciary to act unilaterally, even more than he already does. This is especially important, in light of Youngstown, which limited domestic use of executive orders. To find in favor the president, the Supreme Court would have to ignore Youngstown, and may take the opportunity to overturn it. Prior to the lawsuit vote, Speaker Boehner and several other conservatives tied the need for the lawsuit to President Obama’s use of executive orders. Even if this issue is not explicitly addressed in the lawsuit, and therefore in the Court’s opinion, it is likely that lawyers in the Office of the White House Counsel and the Office of Legal Counsel would use the opinion to buttress future assertions of executive power. In short, a losing lawsuit could significantly tip the balance of power over to the president.
Finally, much has been said about the likelihood that the lawsuit lacks the wheels to reach the merits. Lawfare’s Jack Goldsmith noted that “the lawsuit will almost certainly fail, and should fail, for lack of congressional standing.” This may be the worst outcome of three for opponents of an increasingly powerful president. In the event that the lawsuit plays out as most scholars and pundits expect, only a vacuum will be left where there was once “an invitation to struggle.”
If the lawsuit fails due to lack of standing, Congress might be left on the sidelines in foreign policy. Partisan wrangling makes it nearly impossible to pass legislation, let alone meaningful legislation—a situation which led the House to try to sue the president rather than “use [Congress’s] own political tools to fight back politically to preserve its prerogatives”—but the federal judiciary would have further reduced any chance Congress seems to have to get a seat at the policymaking table.
The “sue instead of resist” approach may lead Congress to abandon measures it might previously have used to constrain the Executive Branch in the field of foreign policy, including informal constraint through oversight and spending restrictions. (Not to mention that one of the constitutional limits on presidential influence on policy making, the advice and consent role of the Senate, is increasingly ignored by presidents in favor of executive agreements.) Moreover, as I’ve argued elsewhere, increasing the number of oversight institutions can lead to the perverse outcome that there is less effective oversight, “[b]ecause oversight is costly, [and] increasing the number of [institutions with oversight jurisdiction] can decrease the incentive for any one of the institutions to actually perform an oversight role, because each prefers the others to bear the cost of auditing the agent.” This matters because it may be efficient for the House to delegate (the cost of) oversight of the president to the judiciary, even of the judiciary will not, or cannot, exercise effective limits on the president.
Historically, of course, presidents have been willing to go it alone in foreign policy. For example, John Yoo notes that “We have used force abroad more than 100 times but declared war in only five cases” (it is worth noting that Yoo’s estimate is probably too low). A recent report that argues that the 2001 AUMF should be repealed illustrates that even when Congress does authorize international presidential action, the president may use initial authorization to justify and expand unilateral action, even when that action is beyond the scope of congressional intent.
Indeed, it is of particular note that the House, which is constitutionally empowered to initiate all spending bills, has chosen to sue the president. Has the House decided that it is politically expedient to ask the judiciary to do the heavy lifting in fettering the president? If so, it shouldn’t come as a surprise. If the House is dependent upon the judiciary for influence over domestic policy, where Congress has a fair amount of influence, the future ramifications for inter-branch battles in the foreign sphere, where it is comparatively limited, are disturbing.
If Congress further abdicates its place in foreign policy, a space already dominated by the president, it is very likely that increased presidential unilateralism provoked by future congressional lawsuits like these will produce especially pronounced effects. The lack of active congressional oversight and influence in foreign policy already has had negative impact on policy; if the president is allowed to act unilaterally in a vacuum, further deleterious impact should be expected.
National security experts have noted for years that the president’s national security policy is likely to be more polished and functional, with diminished likelihood of congressional or public backlash, if it is vetted by Congress before implementation. Goldsmith wrote an entire book arguing that had President Bush (II) been more forthcoming with Congress, he would have gotten nearly every policy he asked for without backlash. Indeed, Goldsmith argued that “when an administration makes little attempt to work with the other institutions of our government and makes it a public priority to emphasize that its aim is to expand its power, Congress, the courts and the public listen carefully, and worry.”
Similarly, in his more recent book, Goldsmith makes a similar argument: “When the executive branch acts in the secret world it defines for itself, it makes more mistakes than usual, and the mistakes are harder to correct because the normal checking functions of the government cannot operate.” Goldsmith’s warning is echoed by John Rizzo, who writes in his memoir that his “biggest regret about the role [he] played in the EIT program” was not pushing hard enough at the outset of the program to have all of the members of the House and Senate intelligence committees “apprised of all the gory details along the way.” To be fair, he feels this way largely because he thinks members “Gang of 8” and former Speaker Pelosi abandoned the CIA years after granting their approval. I think it speaks volumes, however, that Rizzo seems to support Goldsmith’s overall point that unnecessary secrecy leads to unnecessary mistakes.
Finally, in the wake of the damaging leaks by Edward Snowden about the NSA’s data collection programs, DNI James Clapper noted that “had we been transparent about this from the outset right after 9/11—which is the genesis of the 215 program—and said both to the American people and to their elected representatives, we need to cover this gap… so here is what we are going to set up, here is how it’s going to work, and why we have to do it, and here are the safeguards… We wouldn’t have had the problem we had.”
It seems to me that when Goldsmith, Rizzo and Clapper all seem to agree that increased vetting by Congress to ensure that fewer mistakes are not made, we should listen to them. But, because Speaker Boehner has chosen to sue the president rather than face him head on, President Obama and future presidents are less likely to heed the warning, simply because there will be less of a need for a president to be concerned about Congress effectively limiting executive action.
In short, there is a strong likelihood that this battle over domestic policy has national security ramifications. And, Boehner and his fellow Republicans in the House don’t see the end game. And that is troubling, especially as separation of powers fights continue elsewhere (CIA surveillance of Senate Intelligence committee members, for example).