Michael D. Barnes represented Maryland’s 8th District in the House of Representatives from 1979 to 1987. He is a senior fellow at the Center for International Policy.
Before leaving for its August recess, the Republican-led House of Representatives voted to sue President Obama over his failure to fully implement a provision of the Affordable Care Act. Some Democrats have characterized this legal action as unprecedented, frivolous and even outrageous. But it brings back a lot of memories for me, some of which may be uncomfortable for my fellow Democrats and some of which ought to give pause to conservative Republicans rushing to support the lawsuit.
In the 1980s, the tables were turned. I was one of the authors of legislation requiring President Ronald Reagan to certify that the government of El Salvador was improving its dismal human rights record if he wanted to continue giving it military aid. The White House didn’t like the law, but for a couple of years the president certified the uncertifiable, and the aid flowed. Finally, in 1984, perhaps embarrassed by the obvious falsehood of its certifications, the White House searched for a way to avoid having to go through this charade again.
The strategy was not to use a traditional veto, which at a minimum would have resulted in unpleasant media coverage and might have been overridden. Instead, Reagan decided to “pocket-veto” the bill renewing the certification process.
When Congress went into its normal recess between sessions, Reagan took the position that he could not return a veto message because the two houses were not in session, citing Article I, Section 7, of the Constitution, and thus claimed the law was not in effect — a “pocket veto.” I, along with many constitutional scholars, disagreed because the House and Senate had designated officials to receive messages from the president during the recess, including veto messages. I decided to sue.
I sent a letter to each of my House colleagues, and 32 of them joined in the legal action, including two Republicans. We filed suit in the U.S. District Court for the District of Columbia, seeking to have the law put on the books and implemented. In a stark indication of how different the politics of today are from those of 30 years ago, the bipartisan leadership of the House — Speaker Thomas P. O’Neill (D-Mass.), Majority Leader Jim Wright (D-Tex.), Majority Whip Thomas Foley (D-Wash.), Minority Leader Robert Michel (R-Ill.) and Minority Whip Trent Lott (R-Miss.) — joined the suit in support of my position. Then all 100 members of the Senate — Democrats and Republicans alike — joined me in suing the president.
We lost in district court and appealed. This is where it gets interesting for Republicans who think suing Obama is such a terrific idea. The appellate court split in Congress’s favor, with Chief Judge Spottswood Robinson and Judge Carl McGowan finding that we had standing to sue the president and that we were correct that his pocket veto was invalid.
But Judge Robert Bork wrote a blistering dissent of more than 30 pages, in which he argued (almost screamed) that members of Congress cannot, and should not, sue a president. The very idea was constitutionally “absurd,” he wrote, and “constitutes a major aggrandizement of judicial power.” He called the majority’s decision to grant standing to Congress to sue the president “a constitutional monstrosity” and said “those who drafted, proposed, and ratified the Constitution did not intend that the judiciary should entertain suits directly between the political branches of the national government.” And he stated that there was “not one shred of support for what the majority has done, not in the Constitution, in case law, in logic, or in any proper conception of the relationship of courts to democracy.”
I urge my Republican friends to read the arguments of this conservative legal icon as they contemplate their current course.
The Reagan administration appealed the ruling to the Supreme Court, where Chief Justice William Rehnquist wrote for the majority that the case was moot, since the law in question had expired. Justices Byron White and John Paul Stevens strongly dissented. Justice Antonin Scalia, who was a member of the appeals court when the case was heard there, did not participate.
Clearly, we live in a different political age, in which the bipartisan support I experienced in this case is almost unthinkable. But the legal precedent, and the arguments forcefully presented by both sides, could not be more relevant and timely.