Trey Gowdy "RIP'S UP" Congress!

Rep. Gowdy's floor speech in favor of H.R. 4138 the ENFORCE the Law Act.

Status

This bill passed in the House on March 12, 2014 and goes to the Senate next for consideration.

Prognosis

28% chance of being enacted.

Only about 23% of bills that made it past committee in 2011–2013 were enacted. [show factors | methodology]

H.R. 4138
Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law (ENFORCE the Law) Act of 2014
Sponsor Rep. Gowdy, Trey
Committee Judiciary
Date March 12, 2014 (113th Congress, 2nd Session)
Staff Contact Emily Leviner

On Wednesday, March 12, 2014, the House will begin consideration of H.R. 4138, the Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law (ENFORCE the Law) Act of 2014, under a rule.  H.R. 4138 was introduced on March 4, 2014 by Rep. Trey Gowdy (R-SC) and was referred to the House Judiciary Committee.  The bill was marked up on March 5, 2014 and was ordered reported by a vote of 18-14.[1]

H.R. 4138 establishes a procedure for the House of Representatives or the Senate to authorize a lawsuit against the executive branch for failing to faithfully execute the laws.  Specifically, the bill allows the House or Senate to adopt a resolution authorizing a civil action if the President or any federal officer establishes or implements a policy to refrain from enforcing the law.  H.R. 4138 establishes special procedural rules for cases filed pursuant to the bill.  “First, the bill provides that any such action shall be filed in a Federal district court of competent jurisdiction and that the district court shall convene a three-judge panel to hear the case.  Second, the bill provides that the three-judge panel’s decision is appealable directly to the United States Supreme Court.  Finally, the district courts and the Supreme Court are required to expedite any case filed pursuant to the legislation.”[1]



[1] Id. at 2-3.

The Constitution requires the President to “take care that the laws be faithfully executed.”[1]  It effectively directs the President to enforce all constitutionally valid laws, regardless of the Administration’s views on the policies contained therein.  Despite this requirement, “President Obama has failed on numerous occasions to enforce Acts of Congress that he disagrees with for policy reasons and has stretched his regulatory authority to put in place policies that Congress has refused to enact.”[2]  Instead of working with Congress to amend the law, the President has refused to enforce the law on a range of issues including immigration, education policy, and ObamaCare, waiving requirements plainly contained in the law and instructing officials to refrain from enforcing provisions.  “Although President Obama is not the first president to stretch his powers beyond their constitutional limits, executive overreach has accelerated at an alarming rate under his Administration.”[3]

Examples of the President’s failures to faithfully execute the laws are numerous and span the gamut of policy issues.  In the following instances the Administration never claimed the laws at issue violated the Constitution—leading to the logical conclusion that the decisions resulted from the Administration’s disapproval of the policies contained therein.  Of particular note have been the many unilateral delays to and modifications of the Affordable Care Act.[4]  Another example is the President’s decision to suspend certain immigration laws for entire categories of individuals, effectively rewriting the law to make entire groups of undocumented individuals immune to deportation.[5]

Although some have labeled the President’s non-enforcement of the law as “prosecutorial discretion,” there are “fundamental differences between the exercise of prosecutorial discretion and the President’s delay, waiver, or suspension of an Act of Congress.”[6]  Prosecutorial discretion generally involves the Administration’s prioritization and allocation of scarce resources in determining how a law is enforced—not whether it is enforced.  “In short, the President is entitled to establish enforcement priorities, but the ultimate goal must always be implementation of the law enacted by Congress.  If the President disagrees with that law, he must convince Congress to change it.”[7]

Federal courts may not exercise jurisdiction over an issue unless the party bringing the claim has “standing.”  It is a prerequisite that must be established before even moving forward on the merits of a case.  Standing generally “does not turn on the merits of a plaintiff’s complaint, but rather on whether the particular plaintiff has a legal right to a judicial determination on the issues before the court.”[8]  In cases involving separation of powers concerns, “The Supreme Court has stressed that the standing inquiry is ‘especially rigorous’ . . . .”[9]  Members of Congress have sought to challenge the President’s non-enforcement of the law with varying levels of success.  “The courts have been increasingly skeptical . . . of finding standing in cases brought by individual Members of Congress or ad hoc groups of Members.  Courts have rejected Member standing in many of these cases, in part, because the Members bringing the suit were not singled out for especially unfavorable treatment as opposed to other Members of Congress.  Rather, their claims were based on institutional injuries (generally the diminution of legislative power), which necessarily damage all Members of Congress equally.”[10]  In contrast, “institutional plaintiffs (e.g., a House committee when authorized by the full House to bring suit) have been more successful at establishing standing in cases in which they have been authorized to seek judicial recourse on behalf of one House of Congress.”[11]

To effectively respond to the President’s failure to faithfully execute the laws, Congress must be able to establish standing to bring a lawsuit.  “Authorization by a House of Congress [has been] a ‘key factor’ in the standing calculus in institutional injury cases”[12]—“‘[s]o long as the courts are convinced that the legislator-plaintiffs are speaking on behalf of the institution . . . and the Executive’s act is tantamount to a ‘nullification’ of legislative action . . .’”[13]  H.R. 4138 addresses this by establishing a procedure that permits the House or Senate to authorize a lawsuit against the executive branch.

My thoughts on the Senate passing this bill is that it will not pass.  With only 28% prognosis of it passing does not leave much hope.  Also, when checking the track record of the votes in the House, only 5 Democrats voted "aye" to pass the bill.  The other 181 Democrats voted "nay", therefore, it is doubtful the Democratic Senate will pass the bill.   There is another aspect involved with this bill, which assures it will not be set into law, as Obama has no intention of following the "Law of the Land", our Constitution, as he and his administration  have made very clear in the past several days, with these statements:

Washington: President Barack Obama would veto a GOP-drafted bill that would allow legislators to take agency officials to court if they don’t enforce laws, according to a White House statement. The GOP is pushing the bill through the House because Obama has repeatedly declined to enforce laws he doesn’t like, say GOP legislators.

President Obama has refused to enforce those parts of our nation’s immigration laws that are not to his political liking, has waived portions of our welfare laws, has stretched our environmental laws to accommodate his policy objectives, and has waived testing accountability provisions required under the ‘No Child Left Behind’ education law,” according to Rep. Bob Goodlatte, the chairman of the House judiciary committee.   For example, in June 2012, Obama created a temporary mini-amnesty for at least 500,000 younger illegal immigrants. The act boosted his election-day support among Hispanics, but made it more difficult for young Americans to find jobs.

“Political appointees at the Justice Department have announced that rather than work with Congress to amend the federal criminal code, they will simply stop prosecuting low-level drug offenders under mandatory minimum sentencing laws,” said Goodlatte in a Fox News op-ed.

“And now that his signature health care law has not been working and revealed his empty promises, President Obama has changed that law unilaterally over 20 times,” Goodlatte added.

White House officials said they oppose the measure because it creates a paperwork burden for them.

“Federal agencies are continually engaged in the process of determining how to concentrate limited enforcement resources most effectively. The vastly expanded reporting scheme required by the bill would be unduly burdensome and would place the Attorney General in the unprecedented position of having to be kept informed of and report on enforcement decisions made by every other Federal agency ,” said the White House statement.

If the President were presented with H.R. 3973, his senior advisers would recommend that he veto the bill.” source - Daily Caller

I believe that Obama has made it very clear, he will continue with his own process and agenda, regardless of whether he is following proper procedures or laws.  He has on several occasions made it quite clear he feels the Constitution is "out dated", therefore, he has no regard or use for it. 

His actions have shown he will and does step over the Constitution and step around or ignore Congress.  Many Constitutional experts have strongly warned that Obama is or has become an "uber" President, which is a very dangerous situation and we are close to a tipping point, therefore, Congress must take action quickly to put Obama and America back on the right track. 

Since the President must sign any bill into law coming from Congress, and now he has made it clear he will veto any bill saying he must follow the law of our Constitution, it certainly will be interesting to see what corrective action Congress takes.  However, as I stated earlier, it appears to be doubtful this bill will pass the Senate, therefore, although the point here is not mute, but I believe H.R. 4138 is mute.  These are my thoughts, Karol Hancock.

Tags: Congress, Gov.track, Obama, President, US

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"Federal agencies are continually engaged in the process of determining how to concentrate limited enforcement resources most effectively. The vastly expanded reporting scheme required by the bill would be unduly burdensome and would place the Attorney General in the unprecedented position of having to be kept informed of and report on enforcement decisions made by every other Federal agency ,” said the White House statement."

My goodness the Attorney General does not want to know about the day to day enforcement happenings -- poor guy.

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