Bob Levy is Chairman of The Cato Institute

Friends, here are my comments on President Obama’s exercise of powers that, in my view, exceed his constitutional authority.  The article appears in the September-October issue of the Cato Policy Report.

Regards

Bob

More than four decades after Arthur Schlesinger, Jr., warned of The Imperial Presidency, our chief executive now boasts, “I’ve got a pen and I’ve got a phone.” Since that proclamation, President Obama has unleashed a succession of unilateral actions designed to circumvent Congress — rulemaking by executive agencies, executive orders, and selective enforcement of duly enacted legislation.

In response, House Speaker John Boehner (R-OH) announced that he will sue the president for usurping specified legislative functions. That’s a tall order — not because Obama isn’t guilty as charged, but rather because Boehner must first show that he has legal standing to file the lawsuit. Historically, members of Congress have not been able to impugn the president’s authority through litigation. The courts have held that members’ injuries — which must be concrete and particularized in order to trigger standing — are too “abstract and widely dispersed.” On the other hand, creative lawyers advising Boehner argue that his lawsuit will be readily distinguishable from past cases that addressed standing. (See David Rivkin and Elizabeth Price Foley, “Can Obama’s Legal End-Run around Congress Be Stopped?” Politico, January 15, 2014.)

On the merits, the president has plainly overreached. For starters, consider his misuse of executive agencies. Case in point: The Affordable Care Act directs that health insurance policies cover “preventive services,” which an executive agency has defined to comprise all contraceptives approved by the Food and Drug Administration. Several employers objected to 4 of the 20 approved methods on religious grounds and asked the Supreme Court to intervene. In Burwell v. Hobby Lobby, the Court held that the agency’s regulation — never enacted by Congress — violated the Religious Freedom Restoration Act. Sadly, ACA regulations are just the tip of the iceberg.

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