Boehner’s Lawsuit Against Obama Is a Loser Because of the American Conception of Presidential Power

Eric Posner weighs in.
July 11 2014 12:46 PM

Boehner’s Lawsuit Against Obama Is a Loser

Because of the American conception of presidential power.

(Continued from Page 1)

Probably not, because another legal principle cuts another way. Courts have repeatedly held, in the Supreme Court’s words, that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” To understand this principle, one must first recognize that technical violations of the law vastly outstrip the resources of the executive to go after them. People speed on the highways, smoke dope, and cheat on their taxes in vast numbers. Corporations pollute, defraud investors, and evade taxes. More than 10 million people illegally reside in the country, most of them illegally employed by individuals and businesses. The executive branch lacks the resources to investigate, catch, and prosecute all these people. It simply can’t.

So the government must make choices. Many of those choices—like spending more resources on investigating murders than on burglaries—are uncontroversial. But others quickly take on politically charged overtones. What if the government says that it will investigate cocaine dealers but not marijuana sellers, because marijuana possession is not as serious? Or that it will use most immigration resources to deport undocumented immigrants who commit violent crimes because they are more dangerous than those who do not?

Perhaps these are “policy” judgments of the sort that should be made by Congress. There is a pervasive slippery-slope worry that if the president can refrain from enforcing immigration laws against DREAM-ers, then he can also refuse to enforce corporate taxes (if he is a Republican) or laws that give mining firms access to mineral resources on public lands (if he is a Democrat). Indeed, if you accept the principle of prosecutorial discretion in the broadest sense, the president could decline to enforce campaign finance laws against his supporters, or instruct his subordinates to violate the law and refuse to prosecute them. Indeed, President Obama did refuse to prosecute Bush administration officials who appear to have violated laws against torture and surveillance. (The Republicans don’t seem to be upset about this particular exercise of presidential discretion.)

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And yet the government would almost certainly self-destruct if courts tried to force it to enforce every law and to comply with every rule that Congress creates. The Dodd-Frank Act ordered regulators to issue hundreds of new regulations to prevent financial institutions from causing another global meltdown. That was in 2010. Today, 280 deadlines for the new rules have passed and 127 of them have been missed. The regulators simply couldn’t handle so many complex rules and chose to break the deadlines rather than issue bad ones. (Republicans have not complained about this exercise of executive discretion, either.) Complex new programs must be adjusted in light of unanticipated events. What exactly is so different about Obamacare?

Scholars have labored to draw a distinction between justified and unjustified executive discretion. Law professor Zachary Price has recently argued that the president can decline to prosecute on a case-by-case basis, because of lack of resources or difficulties of proof, but cannot adopt a policy of refusing to enforce this law or that. This is surely an unworkable distinction. It would turn an official policy of leaving be people who drive 56 miles per hour in a 55 mph zone into a violation of the Constitution. Why make judgments on a case-by-case basis when rules can be set out in advance?

The confusion in Price’s article and Boehner’s lawsuit hinges on a pervasive misunderstanding of how our government works. Forget what you learned in seventh grade: It’s simply not the case that Congress sets policy and the president executes it. The two branches battle over policy, using all means at their disposal. The laws themselves are frequently vague and loose. In the end, the president enforces most of the laws in an even-handed way because most laws are popular—that’s why they were enacted in the first place. If you don’t believe me, consider how rare it is for presidents to use the pardon power, which is without doubt discretionary, for partisan or ideological ends. President Obama has not gone beyond public opinion—for example, by releasing prisoners from Guantánamo Bay—because he fears a political backlash, not because it’s illegal.

This conflict is baked into our system. It’s a result of the founders’ decision to give the executive and the legislature different sources of political authority. This is how our government differs from a parliamentary system, in which the prime minister operates at the pleasure of the legislature. If you want to blame someone, don’t blame Obama. Blame the Constitution.

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.

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