Tompkins County Republican Party

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The Case for Suing the President

Rewriting ObamaCare laws on the fly is a violation of the constitutionally mandated separation of powers.

By David B. Rivkin Jr. And Elizabeth Price Foley July 30, 2014 7:06 p.m. ET

'So sue me" is President Obama's message to Congress. And on Wednesday the House of Representatives took up his taunt, authorizing a lawsuit to challenge the president's failure to faithfully execute provisions of the Affordable Care Act as passed by Congress. The House lawsuit is no "stunt," as Mr. Obama has characterized it. The lawsuit is necessary to protect the Constitution's separation of powers, a core means of protecting individual liberty. Without a judicial check on unbounded executive power to suspend the law, this president and all who follow him will have a powerful new weapon to destroy political accountability and democracy itself.

Article I of the Constitution vests all legislative power in Congress. Article II imposes a duty on the president to "take care that the laws be faithfully executed." When a law is unambiguous, the president cannot rewrite it to suit his own preferences. "The power of executing the laws," as the Supreme Court emphasized in June in Utility Air Regulatory Group v. EPA, "does not include a power to revise clear statutory terms that turn out not to work in practice." If a law has defects, fixing them is Congress's business.

These barriers between the branches are not formalities—they were designed to prevent the accumulation of excessive power in one branch. As the Supreme Court explained in New York v. United States (1992), the "Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day."

The barriers also reflect the Framers' belief that some powers are better suited for a particular branch of government because of its institutional characteristics.



Congress has the exclusive authority to make law because lawmaking requires pluralism, debate and compromise, the essence of representative government. If Congress cannot achieve consensus, that doesn't mean Congress is "broken." A divided Congress reflects a divided people. Until there is a compromise acceptable to the majority, the status quo is the only correct path. An impasse emphatically does not warrant a president's bypassing Congress with a pen and phone, as Mr. Obama claimed the power to do early this year.

The separation of powers also guarantees political accountability. When Congress makes a law and the president executes it as written, citizens will know whom to reward or punish at the next election.

A president who unilaterally rewrites a bad or unworkable law, however, prevents the American people from knowing whether Congress should be praised or condemned for passing it. Such unconstitutional actions can be used to avert electoral pain for the president and his allies.

If Mr. Obama can get away with this, his successors will be tempted to follow suit. A Republican president, for example, might unilaterally get the Internal Revenue Service to waive collection of the capital-gains tax. Congress will be bypassed, rendering it increasingly irrelevant, and disfranchising the American people.
Over time, the Supreme Court has come to recognize that preserving the constitutional separation of powers between the branches of government at the federal level, and between the states and the federal government, is among the judiciary's highest duties.

In Garcia v. San Antonio Metropolitan Transit Authority(1985), the court was asked whether the wage and hour provisions of federal labor law could be imposed on states as employers. The justices refused to examine the substance of the states' claim, declaring that the so-called vertical separation of powers—federalism—was "more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power." Because members of Congress are elected on a state-by-state basis, the court thought the national political process itself was the more proper way to protect states' rights against federal encroachment. It was a mistake the court would quickly regret.
Seven years later, in New York v. United States (1992), the Supreme Court did an about-face, acknowledging that the political-remedies process alone could not safeguard the separation of powers, and invalidated a federal law that forced states to "take title" to low-levelradioactive waste. The court abandoned the "hands off" position of Garcia because if it did not do so, the federal government could coerce states to do the federal government's bidding—a power that could have severely undermined the federalist structure of the Constitution, and hence, political accountability.

Litigation in federal court is an indispensable way to protect all branches of government against encroachment on their authority. States have successfully sued to stop federal intrusions into their constitutionally reserved powers. State legislators have also successfully sued to protect their institutional authority when state executives nullified their legislative power.

The executive branch is no different. President Obama has repeatedly resorted to litigation to vindicate the executive branch's constitutional prerogatives. His administration has routinely sued states for violating federal laws, in cases such as Arizona v. United States (2012), involving the constitutionality of a state law dealing with illegal immigration.

And the Supreme Court has declared unconstitutional portions of congressional statutes that encroached on the federal judiciary's power. In Northern Pipeline Construction Company v. Marathon Pipe Line Company (1982), the court invalidated a transfer of judicial power to "judges" in bankruptcy cases who were not part of the regular federal judiciary and were exercising powers conferred by Congress, rather than by the Constitution.

Congress is not an institutional orphan. Like the president and the states, it can rightfully expect courts to enforce its institutional authority. Any other result would establish an anomalous loophole preventing Congress, and Congress alone, from vindicating its constitutional prerogatives. Courts would not countenance such a lapse in the constitutional architecture, with the potential to inflict enormous damage to the separation of powers, political accountability and individual liberty.

The problem will be cured once the judiciary declares unconstitutional the president's unilateral suspension of Affordable Care Act provisions and vacates the executive branch measures through which these suspensions were effected.

Mr. Rivkin, a partner at the firm Baker Hostetler LLP, served in the Justice Department and the White House Counsel's Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a constitutional law professor at Florida International University College of Law.

Access to full article is best available by going to Real Clear Politics under morning edition, July 31, 2014.

Tompkins County Republican Party's official position on the County comprehensive plan

Tompkins County Republican Party
James Drader, Chairman
Henry S. Kramer, Counsel/Vice-Chairman
1524 Ellis Hollow Rd., Ithaca, NY 14850
(607) 275-3635, This email address is being protected from spambots. You need JavaScript enabled to view it.

June 27, 2014

Tompkins County Planning Department
121 E. Court Street
Ithaca, NY 14850

By E-Mail to This email address is being protected from spambots. You need JavaScript enabled to view it.

The purpose of this letter is to submit the official position of the Tompkins County Republican Party in regard to possible revisions in the comprehensive plan, as requested in the Ithaca Journal on June 17, 2014.

In his guest column in the Journal on June 17, Ed Marx, signing the column in his official role as Tompkins County Commissioner of Planning, makes several assumptions of the issues facing Tompkins, the sentiments of its residents, and assumes consensus among them on what needs to be done. The posing of the questions to be considered suggests that the answers follow a politically correct agenda dominated by environmental interests over development and job growth. In other words, the questions suggest their own answers, answers the planners want to hear. We believe that the questions asked are the wrong questions, designed to steer the outcome into a pre-ordained mold in which individual choices will increasingly be subject to government interference and control. Our basic beliefs include respect for individual choices and a smaller, less powerful government. The comprehensive plan changes suggested in the Marx column move us more deeply into a government controlled world.

Marx says that “there has also been an increasing interest locally in linking efforts to address climate change with the need to address social equity ….” While the Tompkins County Republican Party would agree that some local environmental activists have embraced both the theories of global warming and climate change, their disdaining all who question the effort to link climate change theories with “social equity” is of deep concern to our Party. Much like the deceptive statement that, “The science is settled”, these theories have become a license for advocates to try to force significant lifestyle changes on the public, in line with the Agenda 21 and Cleaner, Greener New York plans to coerce residents to live their lives in a sea of government dictated patterns. Our Party rejects this effort in favor of individual freedom, personal choices, and property rights.

Climate is a long term concept, well beyond a single human lifetime, not measurable in a few years or even decades. Geologic history shows our planet has undergone climate change many times without human causation. Grapes grew in the Viking settlements in Greenland. George Washington’s troops experienced deep winters. Neither of these events marked man made climate change. The Earth has long term natural variations. Some climate scientists believe these variations can occur quickly. Accordingly, we do not accept global warming or climate change as a basis of a sweeping political agenda based on current short term data. Moreover, some of this data has been known to have been altered or interpreted to satisfy its authors’ theories. When scientists alter or slant data, they do science a huge disservice.

There were a number of specific points in Marx’s guest column we would like to address:

1. Housing. We believe the high cost of housing in Ithaca and Tompkins (one study showed we are the twelfth highest cost housing market in the U.S.) is due primarily to one of the highest property and total tax burdens in our country. Giving tax breaks or assistance to some comes at the cost of others. Subsidies for low cost housing exacerbate the problem. Taxing residents, including those of marginal and low income, to subsidize the housing of others is a zero sum game. As more people enjoy subsidies, more people will then need subsidies because the taxes they pay will become unbearable. In addition, our area imposes extensive zoning and other regulations that impede development.

2. Transportation Choices. We believe that people should be free to make their own transportation choices without the heavy hand of government tipping the scales to what planners consider desirable. We believe government should serve private choices, not dictate or channel those choices. It is an individual’s choice to live in tightly concentrated dense urban areas – or not. But we should not pick winners and losers and punish those who choose to live in private homes with large lots, outside sub-divisions. Government policy should remain neutral and honor individual choices in the housing marketplace.

3. Economic prosperity. We strongly favor economic development, with due regard to the environment as a factor, but not the only factor, in decision making. The major obstacles to economic prosperity are high taxes and burdensome state and local government restrictions that provide reasons for businesses to seek to operate outside the U.S. or, if within it, in states that offer lower taxes and a favorable regulatory climate. The more we plan and regulate, the more we tax and redistribute wealth, the less attractive we become to job makers. One example of a society with “social equity” is Cuba, where there is so much equity that everyone is equally poor.

4. Rural landscapes. If there is one thing we in Tompkins have in abundance, it is land. Given that our population growth is very slow (perhaps due to the factors we’ve discussed), there is relatively little pressure on our land availability. While we favor preserving those few truly unique natural areas, we do not support massive land preservation planning and controls.

5. Water resources. We have abundant fresh water in our region. From the Great Lakes to our normal rainfall, we are blessed with natural water supplies, trillions of gallons of water. The principle of dilution applies in such circumstances keeping our water safe. We do not oppose reasonable health and safety based water regulation but we do oppose declaring every drop of water as subject to EPA regulations and government controls. Lest anyone forget, we too drink the water and we too want it safe.

6. Carbon neutrality. We don’t buy this. It is virtually impossible for one county or even for the U.S. as a whole to change global patterns. While we cut back on carbons, taxing ourselves to do so, foreign governments take our manufacturing jobs and continue to pour carbons into the atmosphere. Until there is world-wide compliance, (an impossibility) such compliance efforts are doomed to be ineffective and costly to our own economy. Further, cut backs in coal production for electric use, unless done very gradually, hurt large portions of the U.S. economy and may cause brownouts and blackouts, particularly in very hot, summer months, when electricity is in peak demand. Ours is a computer based society, a grid that is unreliable will kill many jobs.

7. Preparation for “climate change”. We have already discussed this. Why are we preparing for something that may or may not happen? Why do we attempt to change the social, life style, and political behavior of large parts of our population via government coercion unless there is reason beyond a doubt?

8. Lifestyles. We believe individuals should choose their own life styles, free from coercion by planners and by the state. When government puts its heavy hand on the scales of what is a “good” or “bad” life style, it is no longer serving the people but having the people serve the ends of government. Politicians and bureaucrats in state and federal capitals are often out of touch and do not understand local issues. Even if such actions are supported by a majority of the community, they should not be able to coerce the minority on details of how they will live. We prefer freedom to the tyranny of the majority and heavy handed “protection.”

9. Concentrated communities. Planners by nature and governments love concentrated communities because it is easier for them to provide infrastructure and to regulate life styles. Forcing people to live in dense urban areas may be pleasing to some but it is repugnant to others. Interestingly, when people retain their right to choose their lifestyles, many people prefer “sprawl” to density. If that is what people choose, government needs to accommodate itself to those choices, not attempt to change them. A free people are not over regulated by either government or by over-zealous radicals determined to force people to live in planned sub-divisions, neatly arranged, to satisfy planners and make life easier for infrastructure engineers.

In summary, our Party, representing a substantial portion of Tompkins County residents, believes your planners are asking the wrong questions and addressing the wrong problems in the wrong way. The comprehensive plan should support development along the lines people choose for themselves, individually, not collectively, and with respect for differing views and priorities. Zoning and government controls should be limited to true and immediate health and safety concerns, not broad environmental theories and speculations used as a cover to introduce politically correct life style and social changes.

The agenda in our community has been dominated by a highly organized, activist, and vocal “save the planet” extreme environmentalist lobby, who cannot balance jobs and the economy with the environment. Both are important, we should not allow one interest to be entirely predominant.

The comprehensive plan should not impose new government requirements on the people of Tompkins County.

Respectfully submitted,


Tompkins County Republican Party
By James Drader, Chairman