Enforcing Our Laws: The Right Has It Wrong
Defining the Enemy
President Barack Obama is, by virtue of the office he holds, the chief law enforcement officer in the United States of America. On 10 March 2014, the United States House of Representatives passed a bill — H.R.4138 — to facilitate Congress bringing civil action (i.e., suing) the Executive Branch if they feel the President or a representative there-of is not enforcing the laws.
The full text of this law is provided at the end of this article. On the surface, this may seem a prudent law to enact. After all, this is the President and we want our President to work toward enforcing the laws passed by Congress. Once you educate yourself, however, it becomes evident that this is a political publicity stunt. Not only does this bill have no possibility of passing the Senate, but if it did it would get Vetoed that same day. But the question is this: should it be a law?
To put this another way: should Legislative Branch of our government have the ability to decide how the Executive Branch does its job?
The simple answer to this is: no.
The more complex answer to this is: No, the Legislative Branch should not be in the business of interpreting law (that is the purview of the Judicial Branch), nor should it be in the business of enforcing law (that is the purview of the Executive Branch).
The full answer to this is something I hope to provide with this article.
Power and Government
Our government is a balancing act. The Executive, Legislative, and Judicial Branches are designed to be of equal power. In theory, they are. In practice, the power of these three branches of government are fluid; power waxes and wanes all the time. There have been powerful and charismatic holders of office in each of the branches that have created severe shifts in power. These shifts, however, are generally self-correcting. Sometimes the ship is righted; other times the power shifts in equally disproportionate ways in another direction. In all cases, however, history has shown us that the Constitution is a strong and powerful document capable of handling these stresses. At least so far.
The Legislative Branch has the power to enact any law it sees fit. The Executive Branch has the power to stop such laws from being passed, but can be overridden by the Legislative Branch if enough votes can be garnered. Both can find that a law does not pass Constitutional Muster, and the Judicial Branch can shut it down. This simple dynamic is but one example of the amazing power of the Checks and Balances included in the Constitution. Still, on several occasions, history has shown that there is more to the equation than some high-stakes political version of Rock–Paper–Scissors (–Lizard–Spock).
Here Comes the Judge
Meet John James Marshal. From 1801 to 1835, this was the Chief Justice of the Supreme Court. Coincidentally, from 1801 to 1829, he was (arguably) the most powerful man in United States Government. His power originated from political defeat.
In the Presidential election of 1800, the Federalist party was crushed. Thomas Jefferson was about to become the President, and the Democratic-Republicans were about to take control of both houses of the Legislature. Lame-duck President John Adams and the lame-duck legislature passed what would become known as the Midnight Judges Act. In addition to appointing a slew of judges to Federal benches, appointing John Marshal to the Chief Justice position (without his knowledge!), this bill made sweeping changed to the judiciary to ensure that President Jefferson would not get a new appointee for some time. This was seen as a gross overstepping of power. It may have been; but it was legal and it was eventually deemed Constitutional.
This was a minor shift in power grabbed by a man leaving office. But the ramifications of this choice would be felt for the next two decades. Prior to Justice Marshal, the Supreme Court was seen as lacking "energy, weight, and dignity" (ex-Chief Justice John Jay, in his letter turning down the nomination to head the Supreme Court again). This changed. John Marshal shifted the role of the Supreme Court. They ceased being a passive organization that dealt with such cases as came their way, and became an active participant in governance ruling on laws even prior to cases being filed against them. He was the thorn in the sides of every President and Legislator for his tenure. Power in the United States Government tilted toward the Judicial Branch.
This would last until the election of Andrew Jackson. The war-hero and simple man was not one to be pushed around, especially not by the likes of an educated elitist like John Marshal. President Jackson began a program of ethnic cleansing — removing the native American Indian tribes from their traditional homes, as well as from the lands they were guaranteed by treaty with the United States. In the months leading up to 1830, more and more Native American tribes were being forced from their lands. This became perfectly legal — American Policy, even — under the Indian Removal Act.
In the Supreme Court case Worcester v. Georgia, John Marshal's Court ruled that the lands given to the Cherokee by treaty with the United States were their sovereign territory. This meant that the various laws Georgia was trying to enforce on the tribes were invalid as they had no jurisdiction; further, it meant that the federal government could not force the tribes to leave. Jackson's response to this ruling:
"John Marshall has made his decision; now let him enforce it!"
Granted, this is probably apocryphal. The fact remains that, with the aid of Federal Troops supplied by order of the President, the Trail of Tears took place.
What Does This Mean?
President Andrew Jackson signed into law the Indian Removal Act in 1830. The law of the land prior to this granted the five tribes — Cherokee, Chickasaw, Choctaw, Muscogee-Creek, and Seminole — the right of autonomous nations. George Washington's plan of acculturation was well under way. Jackson sought a more militaristic approach to dealing with the Indians... He wrote the new law. He helped to enact the new law. He enforced the new law. When the law was deemed in violation of previous laws... he chose to enforce the new law.
Should Andrew Jackson have been sued by the Legislature to cease enforcing a law that was deemed in violation? If Andrew Jackson had decided that John Marshal was right, and if he were to cease the enforcement of the Indian Removal Act, should the Legislature have been capable of suing him for not enforcing that law?
Given the complexities of the legal system, would Congress have time to pursue anything other than civil actions against the President? After all, there are a lot of laws, and a finite amount of resources. Not every law can get equal time. With more than 500 members of Congress today, is it fair to think that all of their pet-laws would be at the fore-front of the President's agenda?
Do It Anyway!
Suppose you do not see the argument above. Suppose you do not buy into the idea that the President's job is, to some extent, choosing which laws to pursue, and which laws to let fall by the wayside. Suppose you believe that the President is Constitutionally bound to enforce every law, and resources be damned! How would this look? What laws are still on the federal books that are not generally enforced that would be fodder for civil action under this new bill?
- Anyone who issues a false weather report is in violation of 18 U.S. Code § 2074. The next time the FBI fails to arrest my local weatherman, should I contact my Congressman?
- Anyone who trashes junk mail that arrives at their house and is not addressed to them is in violation of 18 U.S. Code § 1702. Five years in prison is the potential punishment for this.
- Do not even get me started on the number of things you can go to jail for under the Patriot Act...
It has been estimated that, given the complexity of the federal laws, we are all guilty of . Since we are not all in prison, one can assume that every President going back five generations would be seeing his day in civil court while a bunch of elected felons questioned him on his actions for that day. Drop this down to the state level, and the sheer volume of three felonies each daystupid laws that would have to be enforced (by the Governors, one presumes) becomes mind boggling.
Right or Wrong?
The President is the Chief Law Enforcement Officer in this land. But this does not mean that the President is a puppet of the Legislature. The President has the right — the Constitutional duty — to prioritize. This means, by definition, not all laws will get equal treatment. Not every law should get equal treatment.
Let us assume the unthinkable happens: suppose this new House Resolution were to pass. What then?
They whimper and cry as they desperately attempt to overturn this law the next time a Republican President sits in the White House and the Congress is in the middle of their civil action to ensure their new Immigration Law is properly enforced.
MARCH 6, 2014
House Resolution 4138
ENFORCE THE LAW ACT OF 2014
Section 1. Short Title
This Act may be cited as the ‘‘Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law Act of 2014’’ or the ‘‘Enforce the Law Act of 2014’’.
Section 2. Authorization to Bring Civil Action for Violation of the Take Care Clause
(a) IN GENERAL. — Upon the adoption of a resolution of a House of Congress declaring that the President, the head of any department or agency of the United States, or any other officer or employee of the United States has established or implemented a formal or informal policy, practice, or procedure to refrain from enforcing, applying, following, or administering any provision of a Federal statute, rule, regulation, program, policy, or other law in violation of the requirement that the President take care that the laws be faithfully executed under Article II, section 3, clause 5, of the Constitution of the United States, that House is authorized to bring a civil action in accordance with subsection (c), and to seek relief pursuant to sections 2201 and 2202 of title 28, United States Code. A civil action brought pursuant to this subsection may be brought by a single House or both Houses of Congress jointly, if both Houses have adopted such a resolution.
(b) RESOLUTION DESCRIBED. — For the purposes of subsection (a), the term ‘‘resolution’’ means only a resolution —
(1) the title of which is as follows: ‘‘Relating to the application of Article II, section 3, clause 5, of the Constitution of the United States.’’
(2) which does not have a preamble; and (3) the matter after the resolving clause which is as follows: ‘‘That _________ has failed to meet the requirement of Article II, section 3, clause 5, of the Constitution of the United States to take care that a law be faithfully executed, with respect to _________.’’ (the blank spaces being appropriately filled in with the President or the person on behalf of the President, and the administrative action in question described in subsection (a), respectively).
(c) SPECIAL RULES. — If the House of Representatives or the Senate brings a civil action pursuant to subsection (a), the following rules shall apply:
(1) The action shall be filed in a United States district court of competent jurisdiction and shall be heard by a 3-judge court convened pursuant to section 2284 of title 28, United States Code.
(2) A final decision in the action shall be reviewable only by appeal directly to the Supreme Court of the United States. Such appeal shall be taken by the filing of a notice of appeal within 10 days, and the filing of a jurisdictional statement within 30 days, of the entry of the final decision.
(3) It shall be the duty of the United States district courts and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any such action and appeal.