Under the Obama Administration, the executive branch has engaged in numerous actions where it has refused to follow statutes – either on the grounds that the statute implicitly allows it discretion or that the Constitution renders the statute unconstitutional. As has often been noted, these actions are often quite questionable on a legal basis. But there is little that can be done if no one has standing to challenge the action in court unless the Congress is willing to bring impeachment charges, which is generally politically unattractive. In a previous post, I discussed using anti-severability provisions in statutes. While that can help, it will not deter a very willful President. Here, then, I have another statutory reform.
Congress should pass a law that would establish a “court like entity.” The entity would consist of 5 judges, to serve for 10 year terms, selected from retired judges who had served on the U.S. Supreme Court or the federal circuit courts. One of the judges would be appointed by the President with the advice and consent of the Senate. Two would be appointed by the Speaker of the House, with the advice and consent of the House of Representatives. And the final two would be appointed by the Senate Majority Leader, with the advice and consent of the Senate. The appointments would be staggered, so that a new judge would be appointed each year. The court should also be required to be bipartisan, with three members of one party and two of the other party.