Below is my column in Sunday’s Los Angeles Times. I recently testified on this issue in three separate hearings before Congress (here and here and here). Last week, President Obama proceeded to add yet another suspension order to the health care law. It is part of a broader array of such unilateral actions that raise disturbing constitutional issues under the Separation of Powers. This goes beyond the usual discretion in “filing in the blanks” or ambiguities of laws. These were not delegated or unanswered questions. These were largely core issues — dates and coverage issues — that were the subject of intense congressional debate. Indeed, in a number of cases, President Obama asked for reforms and was denied the changes by Congress — only to order the very same reforms by executive action. That is why this is not an administrative law but a constitutional law issue in my opinion.
Recently, a bizarre scene unfolded on the floor of the House of Representatives that would have shocked the framers of the Constitution. In his State of the Union address, President Obama announced that he had decided to go it alone in areas where Congress refused to act to his satisfaction. In a system of shared powers, one would expect an outcry or at least stony silence when a president promised to circumvent the legislative branch. Instead, many senators and representatives erupted in rapturous applause; they seemed delighted at the notion of a president assuming unprecedented and unchecked powers at their expense.
Last week, Obama underlined what this means for our system: The administration unilaterally increased the transition time for individuals to obtain the level of insurance mandated by the Affordable Care Act. There is no statutory authority for the change — simply the raw assertion of executive power.
The United States is at a constitutional tipping point: The rise of an uber presidency unchecked by the other two branches.
This massive shift of authority threatens the stability and functionality of our tripartite system of checks and balances. To be sure, it did not begin with the Obama administration. The trend has existed for decades, and President George W. Bush showed equal contempt for the separation of powers. However, it has accelerated at an alarming rate under Obama. Of perhaps greater concern is the fact that the other two branches appear passive, if not inert, in the face of expanding executive power.
James Madison fashioned a government of three bodies locked in a synchronous orbit by their countervailing powers. The system of separation of powers was not created to protect the authority of each branch for its own sake. Rather, it is the primary protection of individual rights because it prevents the concentration of power in any one branch. In this sense, Obama is not simply posing a danger to the constitutional system; he has become the very danger that separation of powers was designed to avoid.
A glance at recent unilateral moves by Obama illustrates how executive power has expanded, largely at the cost of legislative power.
The suspension of a portion of the ACA is only the latest such action related to the healthcare law:
• The heart of the healthcare law was a set of minimum requirements for insurance plans. After Obama was embarrassed by the cancellations of millions of nonconforming plans (when he had said no one would lose a plan they had and liked), he created first one temporary exemption and then, last week, another, adding two years to the compliance deadline set by law.
• On his own authority, Obama also chose other dates for compliance with the employer mandate.
• Congress ended a subsidy for members of Congress and their staffs so that they would obtain insurance under the ACA on the same terms as other citizens. Obama ordered that the same subsidies would continue, in defiance of the law.
The president has shown similar unilateral inclinations in other areas:
• He asked Congress to change the law to exempt certain classes of immigrants — particularly children — who are in the U.S. illegally from deportation. Congress refused to pass the so-called Dream Act, but Obama proceeded to order agencies to effectively guarantee the very same changes.
• The administration ordered all U.S. attorneys to stop prosecuting nonviolent drug crime defendants who would be subject to what Atty. Gen. Eric H. Holder Jr. called draconian mandatory minimum sentences. The new rule effectively negates sentencing provisions set by Congress.
• Obama opposed the No Child Left Behind Act and in effect nullified it through waivers of his own making.
• For years, the Wire Act was interpreted to mean that Internet gambling was prohibited, which some states and businesses opposed. The Obama administration declared the act would now be treated as having the inverse meaning.
Some of these changes are admittedly close questions, and federal agencies are given considerable discretion in crafting regulations.
For example, the Obama administration repeatedly asked Congress to limit greenhouse gases but was rejected. The administration proceeded to create its own national regulation of the gases along the very lines debated and rejected in Congress. Yet the new regulations are based on a broadly written Clean Air Act and were upheld in part by the Supreme Court. However, this major new regulatory scheme was still initiated without any approval of Congress.
Not even the power of the purse, which belongs exclusively to Congress, is sufficient to deter the White House. The Obama administration took $454 million from a fund established to help prevent illness and put the money instead toward paying for the federal health insurance exchange. Even leading Democratic members denounced this as “a violation of both the letter and spirit of this landmark law.”
I happen to agree with many of the president’s policies. However, in our system, it is often more important how we do something than what we do. Priorities and policies and presidents change. Democrats will rue the day of their acquiescence to this shift of power when a future president negates an environmental law, or an anti-discrimination law, or tax laws.
To be clear, President Obama is not a dictator, but there is a danger in his aggregation of executive power.
Our system is changing in a fundamental way without even a whimper of regret. No one branch in the Madisonian system can go it alone — not Congress, not the courts, and not the president. The branches are stuck with each other in a system of shared powers, for better or worse. They may deadlock or even despise one another. The founders clearly foresaw such periods. They lived in such a period.
Whatever problems we face today in politics, they are of our own making. They should not be used to take from future generations a system that has safeguarded our freedoms for more than 200 years.
Jonathan Turley, a professor of law at George Washington University, recently testified in Congress on the growing violations of the separation of powers.