Rep. Jim Gerlach, a Republican congressman from Pennsylvania, has filed HR 3857, a bill designed to allow congress to sue the president if he fails to enforce federal laws.
“In recent months, we have witnessed an unparalleled use of executive discretion to selectively apply or enforce duly-enacted federal laws,” Gerlach wrote to colleagues last week. “The US Code is not an a la carte menu compiled to serve the whims of a president and federal agencies and no president or executive agency -- regardless of political party or affiliation -- should be able to simply pick and choose the laws they believe should be enforced based on their policy agenda or political wants.”
While much of the GOP’s complaint against President Obama lies with his administration’s de-prioritization of the deportation of non-criminal illegal immigrants and various provisions of the Affordable Care Act (so-called “Obamacare”), it isn’t hard to see how this power could be used by Congress to force President Obama’s Justice Department to go against their August 2013 guidelines that allow Colorado and Washington to engage in recreational marijuana market regulations, or, for that matter, any of the 21 states that have enacted protections for the medical use of cannabis.
Rep. Gerlach’s bill would seek “declaratory and injunctive relief to compel the president to faithfully execute” duly-passed federal laws, like the Controlled Substance Act. Under the bill, if the House and Senate both pass resolutions with a 60 percent majority calling on the President to enforce a federal law, the US District Court in Washington DC would have 30 days to decide on forcing the president to act. Within 90 days the president could appeal the decision to the US Supreme Court.
Rep. Gerlach has created the bill in response to what the GOP sees as a president who is failing to “faithfully execute the Office of President of the United States, and … preserve, protect and defend the Constitution of the United States,” as required by the Presidential Oath of Office. Rep. Gerlach was inspired by the testimony of George Washington University Law Professor Jonathan Turley, who told the House Judiciary Committee last month, “The problem with what the president is doing is that he’s not simply posing a danger to the constitutional system. He's becoming the very danger the Constitution was designed to avoid.”
It’s interesting that there wasn’t much noise from the House GOP during the two terms of the Bush Administration were in power. According to a 2007 report from the Government Accountability Office, President Bush issued statements claiming the right to ignore 160 provisions in 11 appropriations bills passed by Congress. By that point in his second term, President Bush had issued signing statements claiming his presidential right to ignore over 1,100 laws passed by Congress.
Of course, when the Republicans had the Oval Office, it was Democratic stalwarts like Michigan’s John Conyers and West Virginia’s Robert Byrd who wanted to force the president to enforce federal laws passed against torture of detainees, setting minimum qualifications for the head of FEMA (to prevent another “heck of a job, Brownie”/Hurricane Katrina debacle), and banning the transfer of nuclear secrets to India. Sen. Byrd in 2007, echoing Rep. Gerlach today, said, “The White House cannot pick and choose which laws it follows and which it ignores. When a president signs a bill into law, the president signs the entire bill. The Administration cannot be in the business of cherry picking the laws it likes and the laws it doesn’t.”
It’s great we’ve gotten two states to legalize, three states are on deck for 2014 and another five or six are waiting in the wings for 2016. But, obviously, until we end the federal prohibition on cannabis, our work is not complete.