Even though President Obama has signed fewer executive orders than many of his predecessors from both political parties, Fox News has dedicated a significant amount of air time to suddenly questioning long-established presidential powers.
On February 18, Fox legal analyst Shannon Bream dedicated an entire segment to Obama's supposed lawlessness in his rollout of the Affordable Care Act (ACA) on Special Report with Bret Baier, highlighting the "Stop This Overreaching Presidency" or "STOP" resolution, an effort by congressional Republicans to "institute legal action to require the President to comply with the law." Experts more familiar with federal litigation and the U.S. Constitution have noted, however, that these sorts of lawsuits can only be filed in real cases or controversies where a plaintiff has actually suffered a legally cognizable harm. As explained by the Legal Information Institute of the Cornell University Law School:
Legal actions cannot be brought simply on the ground that an individual or group is displeased with a government action or law. Federal courts only have constitutional authority to resolve actual disputes (see Case or Controversy). Only those with enough direct stake in an action or law have "standing" to challenge it. A decision that a party does not have sufficient stake to sue will commonly be put in terms of the party's lacking "standing".
Fox News contributor Dennis Kucinich was included in the segment and floated "impeachment" as an alternative.
It might be difficult to find "an individual or business owner who could point to concrete damage he has or will suffer because of the president's unilateral changes to the health care law," as Bream suggests, because the changes to the law have served to ease implementation of the ACA. Those in search of the requisite legal standing to challenge the extension of deadlines run into the problem that this phased-in enforcement of the law is to benefit companies and consumers, not to "damage" them. Conservative Senator (and former Supreme Court clerk) Mike Lee explained this to The Weekly Standard: "It's not immediately apparent to me who it is that would have standing to show that they would be injured by this ... The people directly affected by the employer mandate are employers. But I would imagine that the administration would argue, if sued on this by an employer ... 'You can't show you've been injured by this. We're letting you off the hook.'"
Moreover, Bream didn't seem particularly interested in pointing out some of the similarities between the rollout of the ACA and George W. Bush's implementation of Medicare Part D. As MSNBC's Steve Benen reported, the Republican response was different when Bush "unilaterally extended deadlines and waived penalties -- relying on nothing but executive discretion and regulatory authority":
When the Affordable Care Act's open-enrollment period got off to a rough start last October, it was easy to note the similarities between its difficulties and those associated with the Bush/Cheney Medicare Part D policy. On Friday, Sam Stein had a terrific report noting just how deep the parallels go.
But there's one important area where there similarities end.
Stein's report is quite comprehensive, and serves as a powerful reminder that major policy overhauls often take a little time to find their footing. Both the ACA and Plan D struggled during the rollout; both suffered technical glitches; both shrunk networks to the surprise of consumers; both struggled with overwhelmed call centers; both suffered in the polls.
But there was one angle in particular that Stein flagged that I'd forgotten about: when Plan D implementation struggled, the Bush/Cheney administration unilaterally extended deadlines and waived penalties -- relying on nothing but executive discretion and regulatory authority.
Why is this important? In general, it's not, except now that the Obama administration is taking similar steps, Republicans are characterizing it as the end of our constitutional system of government.
[W]hen Bush struggled with Part D implementation, he used executive-branch powers to tweak implementation. Obama is taking the same steps now. The difference is, when Bush did it, no one in Congress, in either party, ran around whining about the president creating a "government of one." It just didn't seem that important - because it wasn't.
There's nothing wrong with holding leaders to a high standard -- as a rule, I'd encourage it. But there is something wrong with holding one leader to a new standard -- an "Obama standard" -- that doesn't apply to anyone else.
When other presidents issue executive orders, it's fine. When Obama does it, Republicans insist it's scandalous.
Bream isn't the only reporter at Fox who has found Obama guilty of overreach in his phased-in enforcement of the law, despite real courts' silence on this issue. In a recent segment on America's News HQ, Fox host Gregg Jarrett suggested that delays in the implementation of the ACA were "arguably blatant lawlessness" because the law uses the word "shall" instead of "may" -- which is not the first time he has made this specious legal argument. He also quoted Obama as saying, "I can do whatever I want," even though, as Jarrett admitted, "whether that's in context or not, we can debate it."
Jarrett culminated his legal analysis by attacking the arguments of Rep. Xavier Becerra (D-CA), because "Becerra's not a lawyer, I don't think." In fact, Congressman Becerra is a graduate of Stanford Law School, the second-highest ranked law school in the country, and was admitted to the California Bar in 1985.
Whether or not the Supreme Court changes the modern presidency's robust executive powers established under both Republican and Democratic presidents remains to be seen. On behalf of those bored with the rules of the federal judiciary, however, the court of Fox News is already pushing its verdict.