A Constitutional Abyss
As the administration talks about executive orders, even Democrats are saying: Halt!

(President Obama: Chip Somodevilla/Getty Images)


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.