To end its 2013–14 term, the Supreme Court added to President Barack Obama’s annus horribilis with two weeks of unending setbacks.
In Hobby Lobby, a divided Court rejected the administration’s order forcing companies owned by religious families to provide employees with insurance coverage for contraceptives. In Noel Canning, the justices unanimously struck down Mr. Obama’s recess appointments because they evaded the Senate’s constitutional right to advice and consent. The Court also rejected White House pleas to search smartphones without a warrant, cap overall contributions to federal campaigns, restrict anti-abortion protests, and preserve state affirmative-action programs.
But conservatives ought to be careful in their celebrations. They should oppose Mr. Obama’s abuse use of presidential power, but for the right reasons.
Mr. Obama has only shrunk from leadership in the circumstances where the Founders empowered him. When Syria crossed the “red line” by using chemical weapons in its civil war, he hid behind Congress and the United Nations to avoid a military response. He has stood by as Russia annexed Crimea and continues to destabilize Ukraine. He completely withdrew American forces from Iraq, with disastrous consequences, and he plans the same in Afghanistan. Even though he vigorously deploys drones and electronic surveillance against terrorists, Mr. Obama has imported judicial notions of due process to limit targeting, detention, and trial. And Mr. Obama risks the executive’s virtues for small political gains, such as his refusal to notify Congress about the prisoner swap of five Taliban leaders for Sergeant Bowe Bergdahl.
Mr. Obama’s true threat to the constitutional order arises at home, not abroad. He refuses to enforce the federal immigration laws to deport illegal aliens brought here as children. Although this is a worthy policy goal, embodied in the proposed Dream Act, the White House has no discretion to ignore laws except when they violate the Constitution. Likewise, the administration has delayed the timetable for insurance policies to meet Obamacare requirements, freed some employers from its demands, and approved health-care plans that do not meet the statute.
Mr. Obama has reversed the polarity of the presidency by exercising unilateral constitutional powers over domestic, rather than foreign, affairs. Under the Framers’ Constitution, Congress enjoys the leading position over the former. Article I contains a lengthy enumeration of legislative authorities, such as the power to regulate interstate and international commerce, while the president’s main role in domestic affairs occurs through his duty to “take Care that the Laws be faithfully executed.” Unlike foreign affairs, the need for instant executive action in domestic affairs remains rare. Congress and the president have far more time for reflection and choice, while the states continue to exercise the frontline responsibility to regulate most matters of daily life.
The Supreme Court’s decisions this term implicitly understand this challenge to the constitutional order. The justices rebuked Mr. Obama for extreme claims of presidential power, but in a way that preserves the office’s rights for future chief executives. In Noel Canning, for example, the majority properly rejected Mr. Obama’s breathtaking claim that he could decide when the Senate was in “recess.” If the White House had won, it could have rejected acts of Congress when C-SPAN does not show legislators voting for the bill, or rejected 5–4 Supreme Court decisions because it believed one of the justices to be senile.
Justice Antonin Scalia’s concurrence surely argued correctly that the original understanding of the Constitution limited recess appointments to the time between the first and second sessions of a Congress. Nevertheless, Noel Canning’s majority upheld the gradual expansion of presidential power to permit presidents to unilaterally appoint high officers during short breaks in Senate proceedings. Future presidents can fill offices that come vacant at any time, and they may do so during breaks in Senate proceedings as short as ten days, as has been the de facto practice for more than a hundred years.
The fault lies not in presidential power, but in Mr. Obama. As the case of recess appointments shows, the Constitution’s ambiguous grants of executive power require presidents to carefully husband their authorities. Unforeseen crises and emergencies, foreign challenges and war, should bring forth the ability for quick, decisive, and determined action that lies only in the hands of the chief executive. Mr. Obama is inflicting an even greater harm on the presidency by stretching its powers in cases of garden-variety political disputes. Mr. Obama risked centuries of presidential claims to recess appointments just to place a few officials on the NLRB and win a few more decisions for labor unions. He could have granted religious Americans an exception from certain Obamacare requirements, but instead stretched his powers to force them to bend to his policies on contraceptives. He will not enforce the immigration laws, in order to draw minorities into the Democratic fold. Using inherent presidential power to win in the world of small-ball politics is not just a waste, but it invites permanent repudiation by the other actors in our constitutional system.
Republicans can and should maintain faith with the dual nature of the presidency. They can oppose Mr. Obama’s refusal to enforce the law by cutting off funding for his programs, blocking his appointments, and conducting vigorous oversight over his growing failures from the Veterans Administration’s scandal to the Internal Revenue Service’s targeting of conservative groups. Meanwhile, Republicans can respect the office’s superior abilities over national security by restoring U.S. military strength and supporting steadfast policies on Russia, China, and the Middle East. This would maintain consistency with their support for President George W. Bush, who refused to enforce laws that violated his constitutional commander-in-chief powers. It would also dispel the simple-minded claim among some conservatives that a restrained state at home goes hand in hand with a weak president abroad. Instead, the Framers well understood that our freedom and liberty depended on limited government, to be sure, but that system must be protected from a dangerous world by a vigorous executive. Opposing the White House where it ought to be restrained can help restore the Constitution’s original vision for the presidency.
— John Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He is the author of Point of Attack: Preventive War, International Law, and Global Welfare, to be published next month by Oxford University Press.