It turns out that Barack Obama’s legacy is alive and well.
Whether President Trump’s executive orders on COVID-19 relief are technically legal or not, they clearly subvert the intent of the Constitution. When the legislative branch can’t reach an agreement on policy, it’s not the job of the executive branch to step in and unilaterally make the law. I know this because conservatives spent eight years offering rigorous and convincing arguments against Obama-era executive abuses, warning about the destructive precedents this kind of governing would set. And they were right.
On policy, Trump was right not to surrender to House Speaker Nancy Pelosi in the negotiations surrounding a second relief bill. As the Wall Street Journal put it, to Pelosi the process was “less a negotiation than a stick-up.” If Democrats are larding up emergency bills with partisan goodies, Republicans shouldn’t let them get away with it. But notwithstanding the contentions of our elites from 2008 to 2016, being correct on the substance of a political question does not empower you to ignore the Constitution.
And make no mistake, ignoring the Constitution is what Trump is doing. His deferral of payroll taxes for Americans earning less than $104,000 a year, for example, might even be technically legal, since Congress has deferred the employer portion of those taxes as well. Yet, we all know it is highly improbable that Congress will ever collect those back taxes, because doing so would require passing a new law. So Trump’s actions are a de facto altering of tax policy, just as Obama’s DACA executive actions were a de facto altering of immigration policy. Just as Trump is arguing that his actions will be temporary, Obama argued at the time that DACA wouldn’t last forever — yet, you may have noticed, DACA effectively remains the law today. If presidents are able to sign “temporary stopgap measures” that exist in perpetuity, Congress is useless as a check on executive power.
Of course, no one should take Pelosi’s complaints about the constitutionality of Trump’s executive actions on COVID-19 seriously. After eight years of normalizing this kind of behavior, Democrats have no standing to complain. Nor do most of the political media. When a national political reporter at the Washington Post feels compelled to ask readers to “ponder” and “imagine” what would have happened if “Obama had broken up a congressional stalemate over funding by simply signing an executive order and saying it was so,” one can only marvel at the lack of self-awareness.
We don’t have to “ponder” what would’ve happened if Obama had engaged in such executive overreach. We’re living in the world his executive overreach — which, for what it’s worth, was far more egregious than anything Trump is doing here — helped create. Remember that it was Obama who simply declined to enforce mandates and taxes in the Affordable Care Act — legislation he had argued for and signed into law — simply because those provisions turned out to be unpopular. Obama didn’t delay or defer collection of Obamacare taxes. He didn’t promise to work on legislation to one day make his Obamacare changes permanent. He didn’t even bother coming up with a bogus emergency to rationalize his disregard for the law. He just did what was politically expedient.
Nearly every elected Democrat, liberal pundit, and major editorial page defended this lawlessness using two rationalizations that Trump could now easily adopt himself.
The first rationalization held that the policies Obama’s actions enshrined were right on the merits. The former New York Times editorial-page editor Andrew Rosenthal, for instance, declared that when it came to Obama’s abuses, “context and intent make all the difference,” as if policy should be a function of poll numbers rather than process. Well, guess what? Trump has “context and intent” on his side, too. What’s more vital than helping citizens during a pandemic when Congress refuses to act? Trump could easily contend that he faces a more critical situation than Obama did in 2012, when the latter started his unilateral governance in earnest.
The second rationalization held that Obama’s actions were justified by the supposedly unprecedented level of obstructionism he faced. This was always an absurd contention; Obama signed more consequential legislation in his first two years than most presidents do in an entire term. Yet like the first rationalization, it could just as easily, and just as wrongly, be adopted by Trump. He has faced an equally, if not more, intractable Congress in the past two years. And just as the “obstructionist” Congresses of 2010–2016 were elected on the promise of tempering Obama’s agenda, Democrats won the House on an anti-Trump message. Congress has never had a duty to take up any president’s agenda.
As a practical matter, executive legislating disincentivizes congressional compromise and incentivizes partisanship. As we saw after Democrats lost the presidency in 2016, it often leads to erratic, see-saw governance, in which one party undoes what the other one did unilaterally as soon as it retakes power. It empowers bureaucrats to govern the country. It undermines national consensus and solidifies centralized governance from Washington, which is what progressives desire.
Former Obama spokesperson Tommy Vietor contends that “‘Dems want to do more to help people’ is a stronger message than a fight about constitutionality.” He’s probably right. The debate will almost surely revolve around how executive power should be utilized rather than the abuse of the power itself. Sadly, idealistic process arguments don’t much move the needle with the average voter.
But there were once practical reasons to oppose executive overreach: namely, mutually assured political destruction. Were Joe Biden to win in November, Democrats would fully expect him to govern unilaterally as Obama did when they lost Congress. And Trump defenders, who are now embracing all the familiar rationalizations for his own overreach, would have a tough time arguing against Biden’s abuses. Soon, in fact, there will be no one left in American politics to offer any effective philosophical, practical, or political case against rank executive abuse.
And that’s a disaster that isn’t worth a second coronavirus-relief bill, no matter how badly such a bill is needed.