A Constitutional Abyss

by Fred Bauer
As the administration talks about executive orders, even Democrats are saying: Halt!

La Rochefoucauld said that hypocrisy is the tribute that vice pays to virtue. To which we might add that hypocrisy is the perpetual bedfellow of partisan politics. However, at a certain point in politics, hypocrisy can degenerate into self-righteous sophistry, in which the hypocrite declaims multiple, contradictory slogans in the same tired register of moral dudgeon. Though hypocrisies and bouts of calculated amnesia permeate the current political moment, few theoretical contortions have been as twisted as the Obama administration’s assertions about presidential power. Despite all his rhetoric on the campaign trail in 2008, President Obama has again and again aimed to expand the reach of presidential power. His constant unilateral rewriting of the Affordable Care Act is perhaps the most famous (though far from singular) instance of his exertion of executive authority, but his potential executive action on immigration could be an even bigger assertion of executive might. A president who can single-handedly revise the nation’s immigration laws is a president who can revise many other laws as well.

Much of the Beltway media coverage has focused on the horse-race aspects of these proposed executive orders — what will Republicans say, what will be the electoral consequences in November, and so forth. Less attention has been given to the immediate practical effects of these possible orders (such as whether they will further intensify the shadows of the nation’s legal system) and to the deeper constitutional implications of an executive philosophy that would make Congress a vestigial assembly (a formal nicety, but not a body whose consent is necessary for executive action). As an increasing number of voices have in recent days suggested, attention to such constitutional implications is necessary. 

Recent history provides a starting point for such attention. In a 2006 report on the use of signing statements in the Bush administration, a committee appointed by the American Bar Association found that “executive power as conceived in Great Britain and America excluded a power to dispense with or suspend execution of the laws for any reason.” This report also noted that King James II was rebuked by the English Bill of Rights in 1689 for “assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament.”

At least two points might be gleaned from this report. The first is that, by and large, the Founders drew from a broader tradition in which the executive was not the legislator of last resort, empowered to act where the legislature had refused to and to overrule existing laws at a whim. Instead, each of the three institutionalized branches of the federal government (the presidency, Congress, and the judiciary) have certain, limited responsibilities and powers. Indeed, viewing the executive branch as the legislator of last resort turns the legacy of the Founders on its head: By instituting a multi-step process of legislation (through having a bicameral legislature and giving the executive the authority to veto laws), the Founders made it difficult to pass new laws. This difficulty has often encouraged consensus in the passing of laws and open debate in the examination of them. The difficulty of passing laws is woven into the fabric of the federal government, and so, if we gave the president the legislative authority to act on all issues where Congress has not done so, we would risk supplanting the traditional notion of the balanced republic with an executive-driven state in which Congress is a superfluous organ capable of dispensing political patronage and issuing press releases but not actually governing.

The second point is that, during the Bush presidency, Democratic politicians and others on the Left were aware of (or at least publicly professed a belief in) the limits of executive power. One of the members of the ABA task force behind the 2006 report was Harold Koh, who served in the Obama administration from 2009 to 2013. Many Democrats (and not only Democrats) complained about George W. Bush’s use of executive authority, criticizing his appending of signing statements to bills he signed into law and his use of executive orders. In remarks at the Georgetown University Law Center at the end of 2006, the incoming chairman of the Senate Judiciary Committee, Patrick Leahy (D., Vt.) attacked the Bush administration for exhibiting a “corrosive unilateralism” in its dealings with Congress.

One need not agree with the particular judgments of various prominent Democrats vis-à-vis the Bush administration in order to find merit in some of the general principles to which they appealed. For instance, in remarks on the Senate floor in September 2008, Leahy’s fellow Vermonter Senator Bernie Sanders (I.) assailed the presidential psychology that went “I don’t have to worry about separation of powers. I don’t have to worry about the laws of the land. I don’t have to worry about the Constitution. I am the President. In my judgment, I can do what I want.” Instead, Sanders asserted that there were limits on executive authority — that the president could not write legislation for himself. In remarks about Independence Day in 2008, West Virginia senator Robert C. Byrd argued that the Founders “design[ed] a government that limits the power of the executive in order to prevent tyranny by one man.” Senator Russ Feingold of Wisconsin spoke many times about the need to protect congressional territory from encroachment by the executive. While the president does have considerable powers (especially in his capacity as commander-in-chief), there are limits to these powers.

Throughout the Bush administration, Democrats argued that the president did not have the authority to rewrite or dispense with the laws. These arguments provide a backdrop for the debates taking place in the inner circles of the Obama administration, far from the light of day, about what potential executive orders to issue. The White House has confirmed few details about the executive actions under consideration, but news reports from various sources suggest that the administration is considering decisive steps on revising U.S. immigration policy, affecting possibly millions of individuals. These steps could include granting work permits to millions of illegal immigrants as well as giving more guest-worker visas to certain favored interests.

President Obama himself denied for years that he has the ability to take executive action on immigration. As he and many other members of his administration emphasized over and over again, the president lacks the authority to act on immigration without Congress. For instance, President Obama said in late 2013, “If, in fact, I could solve all these problems without passing laws in Congress, then I would do so. But we’re also a nation of laws. That’s part of our tradition. And so the easy way out is to try to yell and pretend like I can do something by violating our laws.” The president even warned in 2010 that using executive authority to “ignore the laws on the books and put an end to deportation until we have better laws . . . would suggest to those thinking about coming here illegally that there will be no repercussions for such a decision. And this could lead to a surge in more illegal immigration.” (Ironically, many of the critics of President Obama’s potential executive actions on immigration are reiterating arguments the president himself made in the past.)

The president might have changed his opinion about the scope of his power and the consequences of its use, but some congressional Democrats have longer memories and a deeper suspicion of elevating the president to the position of legislator of last resort. As Representative Henry Cuellar (D., Texas) said in April when asked about a potential sweeping executive order on immigration, “If you’re going to change the law, let Congress do it.” Representative Cuellar is basically an ally of the aims of the White House immigration agenda (he supports a House bill that essentially mirrors the immigration bill that passed the Senate), but he believes that the president “doesn’t have the authority” to make sweeping changes to the law on his own. Immigration policy in and of itself had little to do with Cuellar’s recommendation; constitutional process was at stake.

Other Democratic House members — including Ron Barber (Ariz.), Pete Gallego (Texas), and Dan Lipinski (Ill.) — have also expressed reservations about the president’s use of executive authority. Democratic Senators Mark Begich (Alaska), Kay Hagan (N.C.), Mary Landrieu (La.), and Mark Pryor (Ark.) have all voiced their skepticism about the president’s overusing executive authority. And many other congressional Democrats have refused to give their opinions about potential executive action, perhaps in part because doing so would put them between the rock of gross hypocrisy and the hard place of criticizing the president from his own party. Perhaps one of the most forthright denunciations of the president’s proposed executive action has come from MSNBC’s Ed Schultz, who last week argued that sweeping executive action on immigration threatened the political standing of embattled Democrats, the economic position of the average American, and the very foundations of the U.S. constitutional order. “I don’t think one man should have that much power,” he insisted.

Politicians and writers on both sides of the aisle have worried about what Ross Douthat has called a “leap into the antidemocratic dark.” Sweeping action on immigration could push the elastic limits on executive authority to such an extent that these limits would lose all their inhibiting force and become nothing more than limp window-dressing for presidential whim. If the president can rewrite immigration law without congressional approval, what limits would he face? As Yuval Levin has suggested, the president’s case for unilateral action on immigration could, with a few twists, become a case for unilateral action on tax cuts. A president could nullify environmental laws, undo child-labor laws, and rewrite federal law on a gamut of other domestic issues. Making the president the legislator of last resort could, over time, mean that Congress could at best hope to check the president’s dictates by passing laws with veto-proof majorities, which would not stop the legislative center of gravity from shifting from Congress to the executive branch. Such a shift might cheer those who believe that this nation should be governed by a quadrennial dictatorship, but it would run utterly counter to the enumerated principles of the Constitution.

Many members of both parties no doubt realize the deeper constitutional principles at risk from an over-extension of executive authority. With a lukewarm economy, turmoil abroad, and a smorgasbord of domestic controversies, the nation does not need an acute constitutional crisis. If the humanitarian situation on the southern border can in part be traced to the president’s earlier unilateral actions on immigration (and there is considerable evidence that it can be so traced), further sweeping executive action on immigration could lead to further misery — as President Obama himself worried in 2010. The president can claim no urgent crisis in order to justify, say, granting work permits to millions of illegal immigrants; if the need was so great, why did he not work to pass immigration reform (as he had promised that he would) in 2009, when Democrats held great majorities in Congress? Partisan expedience then does not excuse executive overreach now.

The Constitution’s separation of powers provides an institutional cornerstone for the federal government. By limiting the authority of the different branches of government and leveraging them against each other, the Founders hoped to protect self-governance and the liberty of American citizens. It would be an act of surpassing negligence to precipitate a constitutional crisis in order to score a few partisan points. The Republic is bigger than any one man. As rumors swirl about a potential presidential power grab, Republicans and Democrats alike would do well to remember that principle. By focusing attention on these constitutional dangers, members of both parties and the media could discourage the administration from crisis-inducing overreach. Such focusing would require seriousness, balance, and, in some cases, courage. But the potential gain would be worth the difficulties. An ounce of prevention can be worth a pound of cure. Perhaps, by truly taking account of the constitutional abyss before us, we can avoid stepping into it.

— Fred Bauer is a writer from New England. He blogs at A Certain Enthusiasm, and his work has been featured in numerous publications. 

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