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.
The Dem Zombies strike back!!
If The Janitor is correct, one must ask themselves what is going on here? The citizens of the US deserve to know the truth. Is Turley wrong, or misguided, or worse, being used? How can the Professor not know this? It would forward or at least clarify the Professor’s argument if he would address The Janitor’s comment. I would like as an average citizen to know who to believe about what could be a constitutional tipping point.
I expected more understanding from Turley here about the Constitution and how federal law works.
As mentioned above, we all know that the Legislative Branch (Congress) creates the laws. So what does the Executive Branch do? It carries out the laws that are created by Congress. But how does it do that? By law, the Executive Branch (which is the President and all of his/her agencies) has to follow the U.S.C. written by Congress. But often times Congress is too busy to spell out in great detail how exactly the rubber should meet the road with respect to how each agency is affected by a particular law. And even in the case where it isn’t too busy, Congress has learned over the years that the Executive Branch agencies are usually more experienced and better equipped to deal with the miniscule details that come along with the burden of the day to day execution of the laws created by Congress. Congress has solved this problem by affording a reasonable amount of discretion to the Executive Branch agencies which, in turn, allows the agencies to come up with their own detailed rules on carrying out the U.S.C. These detailed rules are known as the Code of Federal Regulations (“C.F.R.”).
A self-proclaimed constitutional scholar like Turley should know about the CFR.
Long story short, when Congress writes a law like the Affordable Care Act, it will state in broad terms in the U.S.C. (and sometimes in minute details) what the law is supposed to do (ie. no person can be turned down for preexisting conditions). It will purposely leave areas of discretion for the Executive Branch to draft its own C.F.R.’s for the the day to day small stuff (ie. how are penalties enforced by the Executive Branch against companies that violate the preexisting condition law, how long does the Executive Branch need to wait before acting against such a company, etc.). (For more on how this works, see Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984)).
So when the President says that he’s going to take action without waiting for Congress, what he’s talking about is using the C.F.R. discretion afforded to the Executive branch by Congress. He is not, as Turley’s article suggests, directly going against the provisions of the U.S.C. The Executive is not allowed to do that. But where Congress has purposely stated in the U.S.C. that the Executive Branch has discretion to do XYZ under the C.F.R.’s, then the President and his Executive Branch Agencies have discretion to do XYZ.
C’mon, Turley. I expect better from you.
Wow, what a powerful statement from Prof Turley.
It truly takes guts to make such a forceful public statement in this political environment.
Even I agree that some of the fiat orders from Obama are good things from a libertarian POV, but however good they may be, what is good in the instant can be just as instantly taken away, and it lays the groundwork for any ad hoc thing a president might feel he wants.
So, what is the check and balance for a president that is doing these things? Impeachment? Censure? Whining about it to the public?
I am just a political peon, with just a little bit of a public voice, and in no way in a position to do anything about it.
But it is wrong, and something needs to done about it.
On March 18, 2013, Health and Human Services (HHS) Secretary Kathleen Sebelius announced that an estimated 71 million Americans who had private health insurance had coverage for preventive health care, such as a mammogram or flu shot, in 2011 & 2012 as a result of the Affordable Care Act. “No longer do Americans have to choose between paying for preventive care & groceries,” Sebelius said.
The problem is that preventive services, which don’t require a copay or a deductible be met, & which are often roped in as part of a routine physical, include only a specific list of checks & screenings. But go outside those bounds & complain about your arthritis or constipation, & you may get a bill for an office visit. Put another way, you may have to pay if the preventive consultation isn’t the primary purpose of your visit or if your doctor bills you separately for the preventive service & the office visit. If your doctor is an out-of-network provider, you may be charged a fee. In fact, you may have to foot the whole bill.
— MainStreet
“No one branch in the Madisonian system can go it alone.” No, but it is easy to imagine one branch turning the other two branches into puppets. The reason it is easy to imagine that is that we can see it happening right now before our eyes.
The pity is that we see it happening not because a strong man is dominating the other two branches, but because those other two branches are emsculating themselves for what they see as self preservation. No longer able to make popular decisions in the face of impossibity, and unwilling to make necessary decisions in the face of unpopularity, they make no decisions at all and defer to an increasingly imperial president.
Joe D, You’re assuming a fact not in evidence, that being people in Congress can read. We know none of them read Obamacare. Pelosi used to be able to read, but all that Botox has blinded her.
We still have a construction of the constitution someplace….. Just not here at this moment….
This column should be made required reading for every member of congress.so each and every citizen should send a copy to their rep. With the appropriate comment. Get off your dead a– and protect our rights and constitution.
@jill
What we need is for everybody in America to come together, end the partisanship, and vote for my team.
With politics so polarized, the only solution seems to be for more people to vote for my team. Things will be less polarized if more people vote for my team.
I read the LA Times when I’m out here and was pleased to read this good column yesterday, in 80 degree temps!
Underlying all of this is a direct collusion between branches of government. There is only gridlock when it is advantageous to the oligarchy to have gridlock. Democrats and Republicans work quite well together to pass legislation which benefits their ownership class. They will also play good cop/bad cop as needed so that people will not recognize their essential collusion. In the meantime what is actually happening is the aggregation of power with the executive on behalf of the oligarchy. That’s why it does not matter if a president is R or D– they are actually working for the oligarchy. It benefits the oligarchy to have an imperial president. For everyone else, the imperial president is a disaster.
It seems almost impossible for committed partisans to recognize what is actually happening in our nation. There seems to be an almost religious need to have belief in one’s party. I think that political parties have merged with or replaced the role of religion in many peoples’ lives. People are deriving “moral” and a sense of value by belonging to parties, to “red” or “blue” states. Upon that rock lies a sense of moral superiority over “the other”, the unenlightened religious members of the supposed opposing religion.
Therefore, as people are taking their meaning and value from parties, it makes seeing through them extremely difficult. But we must. The protection of all that the Constitution demands, means the willingness to protect the other; even the hated, unenlightened member of the “opposing” religion.
The way out, if it is not too late, is to be for the rights of all, no exception.
Of course, I’m just an ignorant, uneducated bystander with no voice in America. Here’s the way I see it and I’m sure I’m called “FAR RIGHT”. It’s been said the way to take America is through their children. Carter took Ed. away from the States. Indoctrination is a slow insidious process but after years go by it matures. People have been placed in government with the same Communist/Socialist ideology and have just been waiting for the right President. It so happens a Senate is filled with the same ideology. It happens the President is Black, from an “entitled” class and the best attribute he has is….he’s a d*** good liar. The media have ties to many of the Party in power so they carry the message and truth is denied.
This would make a wonderful movie IF it weren’t true. We are in the process of a Communist/Socialist takeover which includes the destruction of American’s economy, Health and moral ethics and values. After all, you must destroy before you can build it back the way you want it.
What about the Republican House? In this day and time all both Parties think about are keeping their seat in Congress. Fighting back “might” lose them a vote. They are as corrupt in that respect as the Communist/Socialist Democrats. Who’s the loser? A FREE AMERICA!
“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”
The tipping point was reached in the 1950’s. Rule by executive fiat is part of the growth of the managerial society that began to accelerate in the 1950’s.
http://en.wikipedia.org/wiki/James_Burnham#The_Managerial_Revolution
C. Wright Mills wrote on it extensively.
http://www.nytimes.com/2006/05/14/books/review/14summers.html?_r=0
With the rise of the military industrial complex, decisions affecting the direction of the country and the economy were increasingly made by military generals acting as politicians, business executives taking non-elected political positions in government, and appointees in executive departments making policy decisions.
The FDA, FCC, FTC, the cabinet, TSA, DHS, all make policy decisions, but none of them are staffed by elected office. Somebody like Dick Cheney can pass from Secretary of Defense to CEO of Haliburton to Vice President not because his experiences in one position directly qualify him for another, but because he is part of a self-selecting affinity group with a shared managerial ethos.
Thank you Professor Turley for having the courage and commitment to the Constitution to recognize the damage being done to our system of government, to recognize that the end does not justify the means even when it is something that you politically agree with. As you have said Obama will not be President forever but the damage he is doing will last.
I wish you would expand your argument but am pleased with the fight for the Constitution you are making.
Recently I have been reading the musings of the early 20th century writers in regard to the atavism of common law in Administrative procedural issues, Pound, Freund, Frankfurter, even Holmes. The idea of a progressive adjustment in law to allow, well heeled, well studied intellectual elite facing any contemporary problem, reign to use their expertise to advance societal goals. Being of the ‘middle rank’, I seem consternated by contrasting the Brig Aurora 11 US 382 to City of Arlington Texas v FCC. The underlying idea is of course to encourage the ‘evolving standards of decency’,to adjust to an ever more complex world.
Not too long ago I read, with horror about a number of young women sent back into a burning building. They were not properly dressed, and the law is the law. A type of natural law that evolved in the Muslim world. It was quietly condemned as 12th century logic out of place in the modern world.We in contrast are of positive law, leaning forward, more advanced..
A few years later, as a matter of fact within the last few weeks, a young women was compelled by circumstances to leave a school building, a threat existed. She was wet and the ambient temperature freezing. Administrative rules kept her from returning for a jacket, and more regulations proscribed she could not sit in a teachers car…She suffered cold an possible frost bite,
Stare decisis seems to able to convert our system into a newer more advanced system, as Prof Turley so prudently cautions us to be aware of.
How advanced are we considering the young lady shivering in the cold ?? Are we now a ‘cabinet style’ government as Woodrow Wilson urged, and how did it happen, and under whose authority ? Does the new formula of our founding fall into desuetude ?? The old formula, prior to the DOI was, Power shall allow liberty, we replaced that with, ‘Liberty shall grant power’. Have we flipped the formula back again ??
What can Congress do to stop him? Refuse to pay the bills for his branch of the government and make it shut down?
“When the president does it, that means that it is not illegal ”
Apparently we have a constitutional scholar who has identified a new principle of government: If the congress does not impeach that means that it is not illegal.
I don’t see how anyone can feel comfortable when the machinery of government is harnessed to the will of a particular person or group.
I deplore the refusal of congress to compromise. But unilateral action by the president cannot be the right answer.
Well, you are right on Mr Turley and the Ds & the Rs continue to bicker, oblivious to the fact that they soon may be irrelevant.
I think this snippet says it all: “the other two branches appear passive, if not inert, in the face of expanding executive power.” That’s being kind, especially considering the use and support of unbridled and unconstitutional NSA/CIA/FBI powers.
But think about it. This coming election season, Congress, especially the GOP, can just blame Obama for everything. They don’t have to take responsibility for what is happening in DC, since they are passive and inert. On the other hand, when it comes to the least fortunate, the inert GOP with passive Democrat support were able to cut food stamps to millions of poor, cut benefits to veterans, and cut unemployment insurance to 4 million long term jobless middle class and poor. Congress can act harmfully when it wants to, but taking Constitutional responsibility is another matter..