The

Imperial

Presidency

Introduction

In October of 2012, my office released a 33-page report documenting the rise of the "Imperial Presidency." The report cited over 40 separate examples of the break-down in the rule of law under the Obama Administration. As the report noted at the time, the break-down in the rule of law not only was of significant constitutional concern, but also negatively impacted economic growth and individual prosperity.

Unfortunately, since the release of that first report, the pattern of overreach by the Executive Branch has only continued. The President has even gone so far as to embrace a "pen and phone" approach to his office which suggests he need not follow the established constitutional and legal framework under which our government is supposed to operate. Nowhere is this more apparent than when the Administration decides that as a matter of policy they will not enforce the laws of our nation.

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The following addendum to the original "Imperial Presidency" report details other recent pronouncements from the Administration regarding their refusal to enforce the law and in addition provides examples of where the courts have been stepping in to uphold the rule of law.

Since becoming the majority party in the House of Representatives in 2011, House Republicans have considered numerous pieces of legislation dealing with specific situations where the Administration is ignoring the law, attempting to rewrite the law, or refusing to enforce the law. In some cases the Congressional spotlight and the threat of legislative action has caused the Administration to back down. For example, the National Labor Relations Board ultimately dropped its push to tell a private company where it could locate its facilities. And just this week, as the House was prepared to vote on a bill to overturn a proposed Administration rule that would dramatically alter the way the prescription drug program under Medicare operates in a way that would hurt seniors, the Administration announced that they would no longer pursue its proposed rule.

 

But the sustained pattern of willfully refusing to enforce the law as written, has demonstrated that a more comprehensive approach is necessary. This week the House will consider two bills reported by the Judiciary Committee to restore the proper balance of power and protect our constitutional system. The first bill ensures that Congress and the American people are notified whenever any Administration official implements a formal or informal policy to not enforce a provision of law. The second establishes an expedited process for either the House or Senate to go to court to compel the Administration to enforce the law as written. More specifically:

Faithful Execution of the Law Act:

The Faithful Execution of the Law Act (H.R. 3973) strengthens current law and promotes transparency and honesty in the federal government by requiring all federal officials who establish or implement a formal or informal policy to refrain from enforcing a federal law to report to Congress on the reason for the non-enforcement.

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The ENFORCE the Law Act:

The Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law (ENFORCE the Law) Act (H.R. 4138) will help rein in the growing problem of executive overreach and restore balance to the separation of powers enshrined in our Constitution. Specifically, the ENFORCE the Law Act puts a procedure in place to permit the House, or the Senate, to authorize a lawsuit against the Executive Branch for failure to faithfully execute the laws. The legislation also provides for expedited consideration of any such lawsuit, first through a three-judge panel at the federal district court level and then by providing for direct appeal to the United States Supreme Court.

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This expedited review is crucial in order to ensure that when a lawsuit is brought against the Administration to enforce our laws, the courts not only grant Congress standing, but also hear the case on an expedited timeline to prevent the President from stalling the litigation until his term is up. In addition, the bill statutorily mandates that the courts set aside their own court-created standing rules and thereby prevents courts from using procedural excuses to avoid making decisions in these important separation of powers cases.



Eric Cantor
Majority Leader