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Federal courts should mediate disputes over separation of powers: Examiner Editorial

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Those concerned about presidential overreach would do well to read the Wednesday testimony before the House Rules Committee by Jonathan Turley. Turley, a liberal law professor at George Washington University who has consistently criticized presidents of both parties for abusing executive power, made several important points about the courts and their role - or lack thereof - in confronting the problem.

Turley offered both a stirring defense of judicial involvement in separation-of-powers cases, and a scathing indictment of the courts' passivity as the presidency has grown dangerously powerful. His testimony is a convincing rebuttal of some conservatives' skepticism about House Speaker John Boehner's plan to sue President Obama over the chief executive's abuse of authority in his selective enforcement of the Affordable Care Act. Turley argued that, unless courts begin adjudicating disputes like this one, presidents will simply stretch the limits until they are no longer meaningful.

The political parties and the elected branches, Turley argued, are not the only ones to blame for the polarized state of American politics today. “I believe much of the dysfunctional politics criticized today is the result of the failure of courts to perform their most critical function in minding the lines of separation,” he said. “The void left by the courts has left the two parties with raw muscle tactics.”

Federal courts have been loath to grant standing in cases that challenge overreach by presidents. Turley argues that this creates a situation of “rights without remedies,” rendering almost meaningless the individual freedoms that the balance and separation of powers in the American system are intended to protect. Obama wants to govern alone - as presidents have for decades. Congress lacks a means to resist his unilateralism in a way that is both sensible and practical. To impeach in every such case is not sensible - it would be like applying the death penalty for every burglary.

And Turley noted that “the power of the purse” is increasingly impractical for limiting presidential usurpation. “Due to modern budget rules, it is practically difficult for Congress to immediately alter government programs with appropriation changes,” Turley said. “There are billions sloshing around in federal budgets that can be moved around to fill gaps in funding.” For example, to finance military action in Libya, Obama “shifted billions to fund a war without the need to ask for immediate funding.”

Turley also cited the creative bookkeeping that allowed Obama to take money intended for disease prevention and public health and use it instead to fund the federal health insurance exchange.

Rather than serving as a direct check on presidential usurpations, the power of the purse is thus often reduced to a mere form of retribution after the fact against unrelated spending items - as with the Republican threats to defund Obamacare in late 2013. Obama will not be president forever. Just as he has built upon the abuses of predecessors, Obama's successors will in turn build upon his. If a lawsuit can arrest this trend, it is at least worth trying. If it fails, it will be time to reinvigorate the power of the purse.

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