Skip to content
 

Is a Lawsuit Really the House’s Only Remaining Option?

In response to the argument that the House needed access to the courts in order to protect the separation of powers and its constitutional prerogatives, Representative Slaughter noted “the Founding Fathers gave to the legislative branch the weapons to defend itself without running to the court.” She then proceeded to list these tools of self-defense, including the power to write new laws, repeal old laws, disapprove regulations and attach riders to appropriations bills. She also noted the specific powers invested in the Senate, such as its ability to “put nominees’ feet to the fire” during the advice and consent process. Finally, she cited the House’s constitutional authorities with respect to the executive: “we investigate, hold oversight hearings and we sometimes impeach.”

There is no question that these are powerful tools, potentially powerful anyway, and I think I have already made clear my view that a lawsuit is a very poor option for the House to employ. Nonetheless, it is difficult to see how the House could effectively use some of these methods to address the employer mandate delay. Obviously, it cannot use the Senate’s authorities. It is also hard to see how it could rewrite the law (even assuming the Senate and the President’s cooperation) to remedy the problem. After all, the House does not object to the policy embodied in the employer mandate delay; it objects to the fact that the administration adopted the policy without congressional authorization. Indeed, one of the House’s “injuries” is that the administration opposed any congressional effort to change the law so as to authorize the action it was taking.

Most of the discussion of alternative remedies at the Rules Committee hearing revolved around the power of the purse. But no one explained exactly how the House might use the power of the purse in this situation. In the first place, the spending power is just political leverage; it works the same for policy disputes and legal disagreements. But the political leverage only works to the extent it relates to something the public really cares about; abstract institutional disputes between the branches will hardly qualify. Indeed, even when the public supports Congress’s goal, using the spending power as leverage is tricky. Congress wasn’t too successful in using the power of the purse to control the executive’s conduct of an unpopular war in the last administration, as Slaughter may recall.

Now I do like the Scalia/Ginsberg suggestion that funds for White House staff be cut off, and I wonder why the House doesn’t at least try something like that. Presumably the public wouldn’t be outraged by a reduction of the White House travel budget or the like. Maybe Congress is worried that the White House would demand a reduction in leg branch appropriations in return. In any event, using the appropriations process in this way would require majority support in both chambers, if not a supermajority sufficient to overcome a veto. And even if that existed (which it obviously does not), I am not sure how exactly it would be linked to the employer mandate delay.

So as a practical matter, I think the House is left with the unilateral authorities of investigation, oversight and impeachment. Investigation and oversight seem like appropriate responses because, as discussed in a prior post, further information about the decision-making process is needed to determine whether the House’s disagreement with the IRS is simply a garden-variety dispute over administrative law or whether it reflects a true invasion of the House’s constitutional authority

However, an ordinary committee investigation will not suffice here for at least two reasons. First, the Speaker has already made a decision to elevate this matter beyond a routine oversight issue, and he wants the House as a body to weigh in. If it were sent to a committee for investigation, it would just become one of many ongoing investigations and would quickly become bogged down in the partisan muck. Second, it is very likely that the administration would refuse to produce all (or perhaps any) information regarding the decision-making process on grounds of deliberative process, attorney-client and/or presidential communications privilege.

There is another way, though. The House has a well-established and time-honored method of obtaining important information from the executive branch. The resolution of inquiry is a privileged resolution that seeks information from the president or a department head. Although it is not uncommon for such resolutions to be introduced (CRS counts 290 from 1947 to 2011), most often in recent years by members of the minority party, the House has not adopted such a resolution since 1995.

A resolution of inquiry is not a “legal” device like a subpoena, but an assertion of the House’s role in the constitutional structure, which would seem to be what is called for under the circumstances. As CRS notes, “compliance by the executive branch with the House’s request for factual information in such a resolution is voluntary, resting largely on a sense of comity between co-equal branches of government and a recognition of the necessity for Congress to be well-informed as it legislates.”

A resolution of inquiry could be addressed to Secretary Lew, directing him to produce all documents related to the decision to delay the employer mandate. (A similar resolution could be directed to President Obama, although it is traditional that resolutions to the president “request” rather than “direct” the production of information).

Would such a resolution work? Possibly, but only if the House were united in the resolution. The question then is whether Representative Slaughter and her colleagues would support such a resolution. If they are sincere about wanting to protect the House’s institutional prerogatives, I don’t see why they would not. And if they refuse, at least the Speaker would have tried to use more traditional methods before proceeding with his lawsuit.

Of course, there is no legal penalty for refusing to comply with a resolution of inquiry. But if Secretary Lew were to refuse to comply with the resolution, the House would logically proceed to use its last constitutional tool, one where it exercises judicial and not merely legislative authority, namely an investigation into whether the Secretary should be impeached.

 

Leave a Reply