H.R. 4138: Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law (ENFORCE the Law) Act of 2014

H.R. 4138

Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law (ENFORCE the Law) Act of 2014

Sponsor
Rep. Trey Gowdy

Date
March 12, 2014 (113th Congress, 2nd Session)

Staff Contact
Communications

Floor Situation

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]

Bill Summary

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.

Background

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.



[1] U.S. Const. art. II, § 3.

[2] Committee Report 113-376 at 2.

[3] Id. at 2-3.

[4] Id. at 10-13.

[5] Id. at 13-14.

[6] Id. at 7.

[7] Id. at 8.

[9] Committee Report 113-377 at 18.

[10] Id. at 19.

[11] Id.

[12] Id. at 21.

[13] Id. at 22 (quoting Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws: Hearing Before the House Committee on the Judiciary, 113th Cong. (2014) (statement of Elizabeth Price Foley)).

Cost

According to CBO estimates, implementing H.R. 4138 would not affect direct spending or revenues.

Amendments

1)         Rep. Conyers (D-MI) Amendment #5 – Amendment excludes from the bill's scope any executive actions taken to combat discrimination or to protect civil rights.

2)         Rep. Nadler (D-NY) Amendment #1 – Amendment clarifies that nothing in the act limits or otherwise affects the constitutional authority of the executive branch to exercise prosecutorial discretion.

3)         Rep. Jackson Lee (D-TX) Amendment #6 – Amendment protects the ability of the Executive Branch to comply with judicial decisions interpreting the Constitution or Federal laws.

4)         Rep. Cicilline (D-RI) Amendment #3 – Amendment provides for transparent accounting of the costs of litigation, by requiring the Comptroller General of the United States to issue quarterly reports to the House and Senate Judiciary Committees on the costs of civil actions, including any attorney fees, brought pursuant to this Act.

Additional Information

For questions or further information contact the GOP Conference at 5-5107.