Since 2010, when the Democrats lost their majority in the House and their filibuster-proof majority in the Senate, President Obama’s ability to pursue legislative changes has ground to a halt. With the Republicans taking control of the Senate in January, we can expect to see many more headlines blaring that the “do-nothing Congress” has passed the fewest laws in decades. But that gridlock hasn’t halted the president’s plans to implement his policies. In fact, he claims it has strengthened his power to act alone — if Congress won’t act, he can, and will.
President Obama routinely cites Congress’s obstinacy regarding his agenda as justification for a series of executive actions that suspend, waive, and even rewrite statutes. His frustration is understandable, but his response is not justifiable. Brazenly maneuvering around the lawmaking function of Congress is an affront to the constitutional order.
There is nothing new about congressional gridlock. It is perhaps worse than ever today, but partisan impasses are not novel. There is also nothing new about presidents’ creatively reinterpreting the law in order to justify executive policies. What is new is the relationship between these two factors — invoking gridlock as a justification for redefining executive authority. This disruptive constitutional philosophy poses a threat to our separation of powers. It establishes a precedent for this and future presidents to permanently blur the lines between the executive and legislative prerogatives.
Generally, when a president suffers a congressional setback, he has two choices: advance a more moderate compromise proposal that can get past the political roadblock, or table the issue. Yet, since 2010, the president has chosen a third path: act as if Congress supported him, and proceed with his agenda unilaterally. He has done this with his unconstitutional recess appointments to the National Labor Relations Board, his unilateral modifications to the Affordable Care Act, his unprecedented expansion of immigration authority via Deferred Action for Childhood Arrivals, and many other actions.
The president isn’t just relying on congressional intransigence as a political reason for acting, as University of Chicago law professor Eric Posner has suggested he is. It is also part of his legal reason. A careful study of his executive actions reveals a broader constitutional philosophy of executive power based on gridlock.
I refer to the president’s purported authority in this realm as his corrective powers. Perceiving a breakdown in the normal political process, the president takes unilateral action to right the wrongs of congressional inaction.
In 2011, Senate Republicans blocked a vote on the president’s nominees to the National Labor Relations Board. To prevent the Senate from going into recess and thus allowing the president to make recess appointments, Republicans forced the chamber to hold a series of short, minute-long pro forma sessions every three days. This tactic was introduced by Democrats to prevent George W. Bush from making recess appointments.
Without new appointees, the NLRB would lose its quorum and its ability to issue decisions — an urgent problem. The president had two legitimate options in the face of this political deadlock. First, he could have prevailed upon Senate Democrats to trigger the so-called nuclear option — that is, change the Senate’s rules to eliminate the filibustering of presidential nominations. (Two years later, Senate majority leader Harry Reid did just this, paving the way for confirmations with only a majority vote in the Senate.)
Second, he could have picked more acceptable nominees. (A year later, he did just this by withdrawing the nomination of a controversial board member and substituting an alternative whom Republicans were more willing to back.)
But instead, the president chose Door No. 3. Faced with a political problem that called for a political solution, the president turned to an unconstitutional shortcut: Although the Senate hadn’t gone on recess, Obama acted as if it had. During a 72-hour window between pro forma sessions on January 3 and January 6, 2012, the president deemed the Senate in recess and made three appointments to the NLRB.
In the case of NLRB v. Noel Canning, the Supreme Court unanimously rejected the president’s legal defense of his action and found the recess appointments unconstitutional. But all nine justices went even further than that, specifically refuting the president’s argument that gridlock justified his redefinition of the separation of powers. During oral arguments, Solicitor General Donald H. Verrilli, the administration’s top lawyer, argued that the president’s decision to disregard the pro forma sessions was justified as a “safety valve” in response to “congressional intransigence.” If the president did not make the recess appointees, “the NLRB was going to go dark,” Verrilli said. “It was going to lose its quorum.” The solicitor general’s arguments represented a crystallization of the executive philosophy of the Obama administration.
It was clear that the justices were not in the least persuaded by the solicitor general’s reasoning. Justice Alito charged that the solicitor general was “making a very, very aggressive argument in favor of executive power [that] has nothing whatsoever to do with whether the Senate is in session or not.” The government was asserting, Alito explained, that “when the Senate acts, in [the government’s] view, irresponsibly and refuses to confirm nominations, then the president must be able to fill those positions.” Chief Justice Roberts put it bluntly: “You spoke of the intransigence of the Senate. Well, they have an absolute right not to confirm nominees that the president submits.” Justice Kagan said that the NLRB’s going “dark” was directly “a result of congressional refusal.” Justice Breyer added, “I can’t find anything that says the purpose of [the recess-appointments clause] has anything at all to do with political fights between Congress and the president.” Ultimately, all nine justices emphatically rejected the president’s position.
Writing for the majority, Justice Breyer made clear that “political opposition in the Senate would not qualify as an unusual circumstance” to justify the president’s making recess appointments during the pro forma sessions. Breyer stressed that this was a “political problem, not a constitutional problem.” Justice Scalia made the point forcefully in a concurring opinion, writing that the Obama administration “asked us to view the recess-appointment power as a ‘safety valve’ against Senatorial ‘intransigence.’” Scalia charged that this was a dangerous argument that translated a political dilemma into a constitutional crisis. The lesson from all nine justices was clear: Gridlock does not give the chief executive a license to redefine his constitutional powers.
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Perhaps the boldest example of the president’s corrective powers has been his response to the failure to enact immigration reform. The DREAM Act, which the administration endorsed, would have provided work permits and a form of permanent residency for immigrants who were brought to the United States illegally as minors. Though the bill received bipartisan support in both houses, a Republican-led filibuster killed it in the Senate.
The president again had two legitimate courses open to him. He could have proposed a compromise immigration policy that would receive enough support to overcome the Senate filibuster — perhaps by also strengthening border security and increasing enforcement action. But this was probably impossible. So his only practicable option was to accept a legislative defeat, which he could then use as a political issue as he campaigned against Republicans in his upcoming reelection campaign. (As it turned out, immigration became something of a liability for the Democrats in 2014.)
Instead, the president again chose Door No. 3. He determined that he now had the power unilaterally to defer deportation of the so-called “Dreamers,” and he announced the imposition of this policy (called Deferred Action for Childhood Arrivals). Using “prosecutorial discretion,” the president declared that “eligible individuals who do not present a risk to national security or public safety will be able to request temporary relief from deportation proceedings and apply for work authorization.” Deferred Action for Childhood Arrivals (DACA) in effect accomplished many of the key objectives of the DREAM Act, a law Congress had expressly declined to enact, without the benefit of a statute. The administration excused over a million people, as a class, from the scope of Congress’s naturalization power.
The administration justified the policy as a reprioritization of immigration enforcement. But the scale of this “discretion,” in the absence of any antecedent legislation for the Dreamers, was unprecedented. There is nothing inherently unconstitutional about prosecutorial discretion; it is virtually impossible for the executive to prosecute all immigration offenses. Beyond logistical difficulties, Congress simply does not appropriate nearly enough funds to deport everyone who is here unlawfully. But there is a stark difference between prioritizing some deportations over others due to administrative concerns and choosing not to enforce the deportation power against a class as a means to adopt a policy that Congress opposed. Prosecutorial discretion exists along a continuum. DACA represented a quantum leap across the spectrum, as a million people whom Congress chose not to protect were protected from the immigration laws. While they were not granted formal amnesty, as a matter of policy, future presidents will be hard-pressed to tamper with their “temporary” status.
“In the absence of any immigration action from Congress to fix our broken immigration system,” Obama said, “we’re improving” immigration policy on our own. Through a novel reinterpretation of his executive discretion to deport, the president was able to maneuver around a Congress that would not agree to defer deportations. In his mind, he corrected the vote on the DREAM Act, which should have passed.
If the president initially believed that an act of Congress was needed to accomplish deferred action, what changed his mind? Why bother going to Congress in the first place? He admitted it — if Congress won’t do it, then I will. He was justified in doing what Congress should have done.
Since then, the president has doubled down on this position. In June 2014, after much debate within his caucus, Speaker John Boehner announced that the House would not bring an immigration bill to a vote in 2014: The gridlock would continue. That same day, in impromptu remarks delivered in the Rose Garden, President Obama explained that in response he would take more unilateral executive action on immigration reform: “I take executive action only when we have a serious problem, a serious issue, and Congress chooses to do nothing.” This is simply false, as Congress didn’t do nothing — voting against a policy is taking action. Yet the president warned that he would “fix the immigration system on my own, without Congress.”
Throughout the summer recess, rumors swirled that the president would grant legal status to many millions more, including relatives of the Dreamers. Ultimately — much to the chagrin of immigrant groups — the issue was not urgent enough to resolve before the election, as that would have put vulnerable Senate races in jeopardy. But now that the president is entering his final two years, with his party controlling neither house of Congress and no momentum for immigration reform, the circumstances are ripe for further unilateral executive action. Recent reports suggest the president will unveil his plan, whatever it is, in December.
If President Obama expands this non-enforcement to five, six, seven, or eight million immigrants, in the absence of enabling legislation and in the face of congressional opposition, it would stand as a repudiation of his oath to take care that the laws are faithfully executed. The chief executive may not frustrate the laws he dislikes simply by choosing not to enforce them — especially when Congress is on record opposing that change. While the vote on the DREAM Act was quite close, blanket amnesty would be a political non-starter. Here, in the words of Justice Robert H. Jackson in the landmark separation-of-powers case Youngstown Sheet & Tube Co. v. Sawyer, the president’s inherent powers are at their “lowest ebb.”
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Executive action cannot be justified as a means to end gridlock when constitutionally authorized political reforms — such as eliminating the filibuster, reducing gerrymandering, or uniting American popular opinion — could do so instead. I suffer no illusions about how difficult it would be to use these legitimate means in our increasingly polarized society. But unconstitutionally redefining the president’s authority so that the administration can resolve intractable political disputes should not be casually accepted. As Justice Scalia made clear in his Noel Canning opinion, gridlock is “not a bug to be fixed by this Court, but a calculated feature of the constitutional framework.”
While many may like the results of the president’s executive actions, acquiescence to his claims of authority sets a dangerous precedent for the separation of powers. Each president builds on the power of his predecessor, in a one-way ratchet of executive authority. And the threat transcends partisan interest. Imagine if President Mitt Romney, relying on the same sort of power that President Obama has claimed, indefinitely delayed implementation of Obamacare’s mandates because he could not overcome a Senate filibuster blocking repeal of the law. Or if President Rand Paul, unable to pass a tax reform, decides not to enforce the corporate income tax against Fortune 500 companies, citing prosecutorial discretion similar to that Obama relied on with DACA. Or if President Hillary Clinton, unsuccessful in convincing Congress to pass welfare reform, decides to waive the requirement that welfare recipients participate in the work force in order to receive benefits. Or if President Ted Cruz, in keeping with President Obama’s decision not to enforce controlled-substance laws in two states, unilaterally decides not to prosecute Texas businesses for violations of environmental laws. Or if President Elizabeth Warren decides that the government will no longer collect any interest on federally guaranteed student loans. Or, indeed, if President George W. Bush, when faced with the defeat of his Social Security plan, had instructed the Treasury Department to let workers deposit payroll taxes directly into individual retirement accounts.
If the president is allowed to suspend laws in the name of breaking gridlock, the executive will have the power to enact policies that could never be approved through the legislative process. The solution to political gridlock is to use politics to end the gridlock — not to redefine the Constitution’s separation of powers. Political compromise is hard, but disregarding the Constitution is a hazardous alternative.
— Josh Blackman is a constitutional-law professor at the South Texas College of Law, Houston, and the author of Unprecedented: The Constitutional Challenge to Obamacare. He blogs at www.JoshBlackman.com. A version of this piece, which is adapted from his recent law-review article “Gridlock and Executive Power,” appeared in the September 8, 2014, issue of National Review.