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The Gridlock Clause

by Josh Blackman

You will note its absence from the Constitution

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. Headline after headline blares that the “do-nothing Congress” has enacted 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 to his agenda as a justification for engaging in 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 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, 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 palatable 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 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 — what he wanted to happen — 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] 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 appointment 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.

Perhaps the boldest example of the president’s corrective powers has been his response to the failure of his efforts 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 propose 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.

Instead, the president again chose Door No. 3. He determined that he now had the power unilaterally to defer deportation of the immigrants in question and 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 the key statutory objectives of the DREAM Act, a law Congress had expressly declined to enact, without the benefit of a statute. Although the administration justified the policy as selective enforcement of the immigration laws, the scale of this “discretion” was without precedent. The administration excused over 1 million people, as a class, from the scope of Congress’s naturalization power.

“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.” He would “fix the immigration system on my own, without Congress,” he promised.

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 delusions 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 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 a President Romney, relying on the same sort of power that President Obama has claimed, had indefinitely delayed implementation of Obamacare’s mandates because he could not overcome a Senate filibuster blocking repeal of the law. Or if a President Rand Paul, unable to pass a tax reform, decided not to enforce the corporate income tax against Fortune 500 companies, citing prosecutorial discretion similar to that relied on with DACA. Or if a President Hillary Clinton, unsuccessful in convincing Congress to pass welfare reform, decided to waive the requirement that welfare recipients participate in the work force in order to receive benefits. Or if a President Ted Cruz, in keeping with President Obama’s decision not to enforce controlled-substance laws in two states, unilaterally decided not to prosecute Texas businesses for violations of environmental laws. Or if a President Elizabeth Warren decided that the government would no longer collect any interest on federally guaranteed student loans, waiving any enforcement against defaulting debtors. Or imagine 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 effectively to suspend laws in the name of breaking gridlock, the executive will have 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.

– Mr. 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. This essay is an adaptation of Mr. Blackman’s new paper “Gridlock and Executive Power.”

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