Politics & Policy

No to Executive Overreach

The president is wrong when he argues that Congress is a Bureau of Friendly Advice.

If the reports that have trickled out of the White House over the past few days are any indication of what is to come, we will this evening be treated to a stern presidential rebuke, the dull restatement of a political agenda with which we are all depressingly familiar, and, intermittently at least, a series of indecorous threats. “Mr. Obama,” yesterday’s Wall Street Journal tells us, “will emphasize his intention to use unilateral presidential authority — bypassing Congress when necessary — to an extent not seen in his previous State of the Union speeches.” If it wishes to preserve the integrity of the American settlement, Congress must push back — and hard.

There is a solid reason why previous State of the Union speeches have not featured declarations of “universal presidential authority,” and that is that such declarations are rotten, unseemly, and insulting to the republican ideal. It is regrettable enough on its own that the head of the executive branch elects each year to play the starring role in an ersatz performance of the British Speech from the Throne without that executive’s adding insult to injury and using the opportunity to explain to his hosts how he intends to circumvent their power. The president of the United States, it should be restated over and over and over again, is not the country’s elected monarch but a cog in a complicated machine whose moving parts include the House and the Senate and that, with a few limited exceptions, cannot legally work without them. Would that this one recognized it.

#ad#Instead, as we career into his sixth year in office, he appears to be going the other way. “Obama has surpassed George W. Bush in the level of circumvention of Congress and the assertion of excessive presidential power,” argues Jonathan Turley, a constitutional-law professor at George Washington University. “I don’t think it’s a close question.” Indeed it is not, as both our malleable health-care-reform law and our pliant immigration rules suggest. And yet it’s not just what this president does that so alarms but what he says, too. Why is Obama so frequently charged with aspiring to be a tyrant? Well, because Barack Obama talks like an aspiring tyrant — implying as a matter of course that the behavior of his opposition and the legitimacy of that opposition are in some way related, and warning that he will step in if the country’s turbulent legislators refuse to get with his program. As the likes of Turley have reluctantly noticed, this approach simply fails to tally with the Constitution — which, suffice it to say, contains no provision that renders itself moot in the event that Congress refuses to acquiesce to the president’s whims.

Obama’s metastasizing do-what-I-want-or-else approach is redolent of a “threat,” Senator Rand Paul complained fairly this week. It is, yes. But should this really surprise? After all, this president has made a habit of such exhortations. Cast your minds back, if you will, to last year’s proposed Syrian intervention, during which Obama consistently argued that Congress’s role in matters of war and peace was little more than that of a Bureau of Friendly Advice — useful in a pinch, but without any binding power. Even when he was rebuffed by lawmakers of both parties and by a supermajority of the public, the request for permission came couched in the patois of condescension: “While I believe I have the authority to carry out this military action without specific congressional authorization,” the president granted, with palpable irritation, “I know that the country will be stronger if we take this course, and our actions will be even more effective.”

#page#Obama performed the same song during a recent speech on the filibuster — indulging and advancing the dangerous conceit that, in America, the president is ultimately restrained only by his forbearance. Had he so wished, he could have taken a dramatically different tack: explaining first that the filibuster wasn’t in the Constitution, then that the Senate could set its own rules, and, finally, that he had changed his mind completely on the “nuclear option” now that his party was in the majority. Instead, the president succumbed to his worst instincts, delivering a disgraceful broadside against the very notion of minority rights and conflating the integrity of his agenda with the salubrity of the nation at large. Arguing that “we’ve seen an unprecedented pattern of obstruction in Congress that’s prevented too much of the American people’s business from getting done,” Obama channeled his inner James II, pretending that Congress enjoyed only the power to block legislation that didn’t meet his subjective standard of “importance.” Later, he claimed that “ultimately, if you got a majority of folks who believe in something, then it should be able to pass,” which, although relatively benign in this particular instance, is a dangerous, repugnant theory that could be used as an excuse to undermine almost every part of the American constitutional settlement.

It remains to be seen whether the president truly intends to take the illegal route to success — as he has done with both Obamacare and with the immigration laws — or if he is merely posturing, as during his ill-fated push for stricter gun control. Either way, that his underlings are so brazen and unashamed in their language is symptomatic of an attitude that needs razing to the ground. “We need to show the American people that we can get something done,” Dan Pfeiffer, a senior White House adviser, told CNN, previewing tonight’s speech and citing the little-known “Get Something Done” clause of the Constitution.“If Congress doesn’t act, the president will,” Pfeiffer added, darkly.

#ad#The popular response to this claim should, of course, be, “no you will not.” But it seems, alas, that the opposite is the case. Crowing a little, the Washington Post’s Greg Sargent wrote yesterday that

despite the inevitable screams about Obama “tyranny,” this approach will politically be at worst a wash (independents are split on it 49–49) and at best a net positive (in addition to majority support for it, moderates favor it by 56–43; only Republicans and conservatives oppose it in large numbers). . . . 

It remains to be seen whether the new approach will succeed in raising Obama’s approval rating, which is also important for 2014, but what is the alternative? More of the same. And at bottom, people don’t care about process. They care about results.

Sargent assures me that he is only discussing the “politics” of the thing, so I will be kind and take his word for it. Nevertheless, I am perplexed as to why the public’s tolerance for this proposed behavior is worthy of inquiry at all. Certainly, many “people don’t care about process . . . they care about results” — it is for this reason, after all, that our fundamental laws are set apart from the transient sentiments of the public. But the unavoidable implication of Sargent’s question “What is the alternative?” is that the undermining of the process becomes acceptable if enough people are fine with it. In other words, in the age of Obama, the important question is no longer “What can the executive legally do?” but rather “What can the executive get away with?” Tonight, in front of a bank of teleprompters, television cameras, and the assembled press corps, we will watch a man announce his intention to test the waters. America should ensure that the resolute and unmistakable answer is: “No more and no less than you are permitted to, Mr. President.”

 — Charles C. W. Cooke is a staff writer at National Review.

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