If Democrats acquiesce, Congress will be overseeing its own demise.
From the beginning of its rollout of executive orders on immigration, the White House might have hoped that public debate on these actions would sidestep procedural questions and instead focus on partisan politics. What will the GOP do now? Will this split Republicans? Will those deranged teahadists shut down the government? The public debate would crystallize into a “he said, she said” argument between Republicans and Democrats, the press would focus on political posturing, Republicans would huff and puff, and the White House could prepare its spin doctors for a potential battle over the budget.
For all the president’s invocations of the need to transcend rank partisanship in 2008, the Obama administration might have expected that the president’s sweeping executive actions would cause the Beltway-media complex to dissolve into partisan controversy. However, as the president edges closer to announcing his executive actions, there are signs that the White House’s game plan might be facing some difficulties. Recent rumblings from the media and the silence from congressional Democrats suggest that, if the president does indeed take sweeping action, the administration’s preferred media storyline could be scrambled and the president’s case for executive supremacy could face considerable opposition.
As early as this summer, some sympathizers with and allies of President Obama began to sound their own alarms about the precedent he would set by taking unilateral executive action of this magnitude. Jonathan Chait warned progressives that they should be wary about the case for executive supremacy, and the Washington Post editorial board (along with many others) drew attention to the danger of the president’s actions.
With the release of an outline of possible executive actions on immigration, this trickle of criticism has grown. Yes, Ross Douthat, National Review’s Charles C. W. Cooke, David Harsanyi, Conn Carroll, and many, many others on the right continue to warn about the dangers of the president’s case for executive supremacy. But voices in the broader media are also starting to focus criticism on the president’s plan. David Brooks, an Obama sympathizer and not exactly the personification of right-wing partisanship, finds that the president’s executive action on immigration would “destabilize the legitimacy of government” and “defin[e] constitutional deviancy down.” The Washington Post editorial board laments the president’s “frustration with democracy” and says that “unilateralism will not make the system work.” Even MSNBC’s Lawrence O’Donnell (even less the personification of right-wing partisanship than Brooks) has said that he has not be able to find a single elected Democrat who can explain to him the legal justification for some of the president’s potential executive actions.
Both the Post and the New York Times have recently run stories noting that the president’s recent statements starkly contradict his earlier declarations that he lacked the constitutional authority to take sweeping action on immigration. The Times’s case is particularly interesting: While its editorial board has called upon the president to “go big” on executive action, the paper also featured a front-page story noticing the president’s radical about-face on executive powers. Clearly, some at the Grey Lady have at least a few doubts about executive supremacy. When the president ran for office and for reelection, he asserted the importance of deferring to Congress and specifically denied his ability to do some of the things he is now considering doing. When ABC’s Jonathan Karl asked White House Press Secretary Josh Earnest about this shift, the presidential spokesman stammered.
This recent press attention on the president’s claims for executive authority might be no more than a perfunctory inquiry. Having contented itself with a brief imitation of speaking truth to power, the media might then go gallivanting off in pursuit of a new shiny object. But this attention could also be the first stage of a more rigorous media scrutiny.
Nor is it entirely clear that the White House will be able to count on unanimous Democratic support if it should go through with its rumored actions. Many congressional Democrats (including Barack Obama when he was a senator) complained about the Bush White House’s claims of executive authority, so they might find themselves in an uncomfortable place if they say nothing about a president who makes even more sweeping claims for presidential power. On the campaign trail earlier this year, numerous endangered Democrats expressed unhappiness with President Obama’s expected executive actions, and it appears that this skepticism has not yet entirely evaporated into the fumes of broken campaign promises.
Six high-level Senate Democrats (including Majority Leader Harry Reid) have urged the president to take sweeping executive action, but many other Democrats remain noticeably silent. The offices of a number of Democratic members of Congress refuse to state where that Democrat stands on the president’s executive action, a sign that some Democrats in Congress are keeping their options open on this issue. Greg Sargent, one of the major defenders of the president’s executive claims, has gone so far as to list the names of some Senate Democrats who may consider opposing the president on increasing executive authority: Joe Donnelly (Ind.), Heidi Heitkamp (N.D.), Joe Manchin (W.V.), Claire McCaskill (Mo.), and Jon Tester (Mont.), along with Independent Angus King (Maine) and other unnamed Democrats.
Congressional Democrats may have numerous reasons to wish to speak out against sweeping executive action. Some of these reasons might be personal or political. Some might realize that while President Obama will be out of office in a little more than two years, they will potentially be in Congress for many years after that. Signing off on executive supremacy now could set a precedent that would radically weaken the power of Congress in future years, so, by endorsing the president’s actions, congressional Democrats could be lessening their own power in the years ahead. They also might fear the implications of the Obama precedent for potential future Republican administrations. But some Democrats might object for more philosophical reasons. Jonathan Turley, an avowed liberal and a critic of Obama’s constitutional overreach, and others as well have warned about the potentially destabilizing effects of executive supremacy upon the U.S. constitutional structure. The Obama administration’s assertion of executive supremacy could open a door to a path that many Americans — right, left, and center–would fear.
Much of the debate about the fallout from the president’s executive actions is now predicated on the notion that Democrats will stand as a unified bloc, unquestioningly loyal to the White House. If that changes — if Democrats rise to defend their key congressional powers — the debate over the president’s executive philosophy will no longer be seen as a quarrel between Republicans and Democrats but as an argument between the branches of government. The White House might like its chances of winning a partisan battle, but it will probably face considerably longer odds if this debate goes beyond partisanship.
In the days ahead, we might see the White House and its allies try to delegitimize the debate over executive power by casting it as merely partisan scrabbling. In many respects, the clearest way for the president to extend executive authority is to rally all Democrats to him and have their blind and total support. Acrimonious partisanship would therefore help centralize executive power. And the administration could be successful in that enterprise of partisan polarization. The campaign promises of many Democrats in 2014, along with the soaring rhetoric of 2001–2008 about the dangers of executive unilateralism, might evaporate after all. But if the debate shifts past partisanship to an inquiry into constitutional norms and the separation of powers, a bipartisan coalition could avert a constitutional standoff or at least resolve that standoff in a way that does not give the president a blank check on executive powers.
— Fred Bauer is a writer from New England. He blogs at A Certain Enthusiasm, and his work has been featured in numerous publications.