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Yes, We Can Wait
We can always wait for the Constitution.

Representative Kathy Hochul (D., N.Y.)

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Michael Tanner

In pushing through parts of the New Deal, President Franklin Roosevelt reportedly told one wavering congressman, “I hope you will not permit doubts as to constitutionality, however reasonable, to block the suggested legislation.”

As one listens to the Obama administration and others defend the Patient Protection and Affordable Care Act (a.k.a Obamacare), one gets the impression that Roosevelt’s nostrum has been adopted as the official motto of this administration. Their attitude seems to be that, of course Obamacare is constitutional because, well, because it’s important.

The idea that federal government’s power should be limited is dismissed as a quaint relic of a bygone age. There are important national problems to be solved, and we should not be held back by a document from the past. As Representative Kathy Hochul (D., N.Y.) puts it, “Basically we are not looking at the Constitution. . . . The decision has been made by this Congress that American citizens are entitled to health care.”

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This attitude is on display in other areas as well. Constitutional niceties, legislative rules, and democratic debate are all impediments to be dispensed with when “we can’t wait.”

For example, the administration apparently grew tired of Republican opposition to the appointment of Richard Cordray as head of the new Consumer Financial Protection Agency created under the Dodd-Frank law, so they simply made a recess appointment of Cordray — despite the fact that Congress was not in recess. President Obama used the same non-recess recess appointment to name three new members to the National Labor Relations Board. When asked how he could justify doing so, the president simply shrugged and said, “I refuse to take ‘no’ for an answer. I am not going to stand by while a minority in the Senate puts party ideology ahead of the people we were elected to serve.”

President Bush was justly criticized for his extraordinary use of executive orders and signing statements to avoid the untidiness of the legislative process. But President Obama has adopted the same tactics, choosing to act unilaterally or to disregard parts of legislation that he thinks impinges on his authority. For example, rather than go through the difficult and lengthy process of having Congress revise the No Child Left Behind Act, the president simply gave the states waivers from NCLB if they agreed to adopt the administration’s preferred education policies. It is no defense of NCLB to wonder how the president gets the power to make federal education policy, and for that matter state education policy, through the waiver process.

Then again, this is the administration that unilaterally decided to grant some 1,200 waivers from various provisions of Obamacare.

The president has also felt free to repeatedly commit American troops to action without congressional approval. Indeed, not only has the president refused to seek a declaration of war, but in the case of the U.S. bombing of Libya, he didn’t even bother with the congressional notification required under the War Powers Act. The same is true of the president’s dispatch of troops to Uganda.

Democrats in Congress also seem impatient with the normal give and take of the legislative process. Thus, when Senate Republicans used their power to delay consideration of legislation dealing with Chinese currency manipulation, Democrats simply changed the Senate rules to deny Republicans the ability to offer amendments to the legislation. And hardly a week seems to pass without some Democratic proposal to eliminate or restrict the filibuster.

Of course, we should not forget the health-care law was pushed through in the first place with at best minimal concern for congressional rules.

The genius of the American system is that we are a government of laws and not of men. That often makes for a messy and slow process. But it is far better than the alternative. That’s true even when a president believes “we can’t wait.”

— Michael Tanner is a senior fellow at the Cato Institute and the author of Leviathan on the Right: How Big-Government Conservatism Brought Down the Republican Revolution.



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