Yesterday afternoon, a federal appeals court
tossed a lawsuit against the Obama administration filed by a
consortium of doctors opposed to the president’s delay of
Obamacare’s employer mandate.
The court did not rule that President Obama’s decision to delay
was legal. It did not rule on the merits of the delay at all.
Instead, the three-judge panel in the 7th Circuit Court
of Appeals
said the doctors had no standing to sue, because they could not
demonstrate that they would be directly harmed by the delay.
The question of standing has always plagued challenges to the
administration’s multiple delays of the employer mandate. Even
though liberal legal scholars who support the health law have
suggested that it is likely an overstep of executive authority, it
is hard to find anyone with the legal status to sue.
The appeals court decision suggests that a similar suit against
the mandate now in the works from House Republicans will face the
same problem. President Obama’s move may be illegal, but there’s no
one who can stop him.
A few hours after the appeals court decision was released,
American forces began bombing targets inside Syria. Obama had
foreshadowed the strikes in a
speech earlier this month, and had invited Congress to
officially approve the action, in the way that one might invite a
friend over at the last minute for a long-planned dinner. The table
was already set, the meal already cooking. It was all going to
happen, whether or not Congress decided to show up.
Congress did not approve the strikes. The administration
maintained it had the authority to wage war in Syria anyway
under the Authorization to Use Military Force passed in the wake of
the September 11, 2001 attacks.
It is, at best, a
dubious proposition. That authorization allowed the use of
military force against Al Qaeda and affiliated forces. The current
strikes are aimed at ISIS, which is no longer part of Al Qaeda,
which has
disowned ISIS.
As such, the strikes are probably illegal.
At minimum, they do not meet the standard laid out by Barack
Obama on the campaign trail in 2008, when he
told The Boston Globe that “the President does not
have power under the Constitution to unilaterally authorize a
military attack in a situation that does not involve stopping
an actual or imminent threat to the nation.”
In his recent speech on the strikes, President Obama suggested
that ISIS “could pose a growing threat beyond” the Middle East “if
left unchecked,” but also said that “we have not detected specific
plotting against our homeland.” By Obama’s own admission, ISIS does
not meet the test he himself laid out while running for
president.
But who can challenge the president’s decision to wage war? The
answer is almost certainly no one. Certainly not
elected officials in Congress. Since 1973, with the passage of the
War Powers Resolution, a law intended to restrain the executive
branch’s capacity to wage war, there have been multiple attempts by
legislators to challenge a president’s legal authority to wage war.
None have made a dent in executive authority. In four cases, as the
Congressional Research Service noted in 2012, the
courts refused to render a decision on the merits, labeling the
suits as fundamentally political in nature. Two cases were
dismissed for lack of ripeness, and two more were tossed for lack
of standing.
As with the delay of the mandate, the recent strikes are
probably illegal, and yet no one can mount a challenge. President
Obama is unchecked, and uncheckable.
Obama is the only one with the power to stop himself. Indeed,
while running for president, that’s exactly what he promised he
would do.
“The biggest problems that were facing right now have to do with
George Bush trying to bring more and more power into the executive
branch and not go through Congress at all, and that’s what I intend
to reverse when I’m President of the United States of
America,” he
said at a televised campaign event in 2008.
A year before that, he voiced explicit support for the War
Powers Resolution. “The government of this country is not based on
the whims of one person,” he said.
The public liked Obama’s vision, and voted him into office. But
the promised reversal never arrived. And now, on too many policy
issues, in too many significant decisions both at home and abroad,
it seems all too clear that the whims of one person are what matter
most.
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