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.
Cheers big ears.
Censorship is the hallmark of a tyranny.
One name is verboten here: iersPay organMay.
The tipping point is when the civil rights law blog censors the comments.
Obama is not, as some suggest, merely filling in statutory gaps left by Congress. Rather, he is flouting black letter law as enacted by Congress (or interpreted by the courts). Examples per Prof. Turley’s piece…
Congress: set health care law compliance deadline
Obama: “add[ed] two years to the compliance deadline set by law”
Congress: “ended a subsidy for members of Congress and their staffs”
Obama: “ordered that the same subsidies would continue, in defiance of the law”
Congress: “refused to pass the so-called Dream Act”
Obama: “order[ed] agencies to effectively guarantee the very same [Dream Act] changes.”
Congress: enacted “mandatory minimum sentences” in drug cases
Obama: “ordered all U.S. attorneys to stop prosecuting nonviolent drug crime defendants,” which “effectively negates sentencing provisions set by Congress.”
(Courts: “interpreted [Wire Act] to mean that Internet gambling was prohibited”
Obama: “declared the act would now be treated as having the inverse meaning.”)
Professor Turley gets at the core problem here: “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.”
Stated somewhat differently, Obama is going well beyond Bush, a mere constitution shredder, by essentially repealing the entire basis for U.S. sovereign authority on which the constitution rests, i.e., the Declaration of Independence, which–until now–abolished rule by monarchs.
@Prairie Rose & JackSprat:
“If the Executive branch agencies already have this discretion, then the president has no need to state that he is going to take action without waiting for Congress.”
It’s pure political posturing, to be sure.
To make a rough analogy (again, this is a ROUGH analogy, not an exact analogy), it would be like your boss at your job making an announcement during a team meeting that if you don’t complete your project by March 15 then he’s going to give your project to Bob. Your boss has no need to state that he is going to give your project to Bob — indeed, he could do this at any time with or without your approval. He’s your boss, afterall. But he wants to make a big deal out of it so that you’ll take action.
Same principle here.
The Pres can already operate within the limits of the CFR’s, but he’d rather have Congress pass laws (USC’s) that give him what he wants.
Beyond the showmanship, however, there is a practical incentive for the President to get Congress to pass a law to further his agenda rather than using his discretion within the CFR, and that incentive is this: A CFR is a weaker measure than USC, just as a law (USC) is a weaker measure than a Constitutional Amendment. A CFR’s scope can be eliminated by Congress much easier than if Congress were to repeal its own USC. In order of permanency, its goes: (1) Constitutional Amendment, then (2) USC, and lastly (3) CFR. In other words, if you can get an Amendment you go for it, but Constitutional amendments are very difficult (throughout our Nation’s history there have only been 27) so a President will not likely get one to pass. If you can’t get an amendment, then you get Congress to pass a law (USC). If you can’t get a USC, then you fall back on the CFR.
raff, We have a fire raging and you want to focus on fire prevention. That’s denial, dude.
“It sounds as if he is merely reminding them that he has this C.F.R discretion and will be using it.”
If he already has CFR discretion then it is already out of Congress’ hands and therefore a non-issue. However, the manner in which he addressed Congress was a threat to circumvent them. It was not a friendly heads-up, hey, I have a CFR on this and my agencies will just take care of the fact that none of us bothered to read the ACA and notice that there were problems. There is no reason to threaten ‘to use a pen and a phone if you don’t do what I want’ if President Obama already has authority.
As I think I understand it, President Obama has no need to issue executive orders if a CFR is in place in the legislation because it is the agencies that come up “with their own detailed rules on carrying out the U.S.C.” I’m not entirely convinced that CFR has anything to do with the examples Mr. Turley cited.
Further, I don’t think a CFR applies to this scenario:
“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.””
Under other circumstances Obama’s actions might bother me but not now. The Republicans are refusing to do their constitutional duty and the Supreme Court has become an un-elected legislative branch mostly adhering to Republican wishes.
We have a non-functioning government and I’m pleased that Obama is stepping up and assuming powers that may not be authorized in our constitution. This legislature refuses to do their duties, not because policy differences, but because of pure unadulterated racial hatred. Their attitude is that out first black President must fail regardless of the cost to our citizens or country.
I look at President Obama’s actions the same way do about civil disobedience—there are times when that is the only way right a wrong.
It sounds as if he is merely reminding them that he has this C.F.R discretion and will be using it. That doesn’t sound as if it is outside of his allowable Constitutional rights as Executive. Perhaps he thinks it helps highlight the intransigence of the Congress by saying he won’t for wait for them. I’m beginning to think this brouhaha is nothing more than smoke and mirrors.
“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.”
If the Executive branch agencies already have this discretion, then the president has no need to state that he is going to take action without waiting for Congress.
The phrase “waiting for Congress” sounds like the president expects Congress to act on some aspect of legislation. Taking action without waiting for Congress sounds like he’s acting outside the CFR discretion already afforded him.
I am 70+, and I’ve seen it change. Congress created agencies with rule-making power. Today we find the Executive giving orders to those agencies.
In the 40s and 50s, oh my but did they grow. Not being a legal scholar, has there been a case involving the rule-making power (which belongs to congress) delegated?
I learned today from Mediaite that Michael Moore is part of the 1% thanks to his reward for a single project. Citizen United is regarding corporations composed of people not a single individual with few employees & more money than god muckraking like anyone who does not think analogously is inexpedient.
Respectfully, the real problem is not an over reach by the Executive branch, while I agree that there has been some over reach. The real problem, in my opinion, is the money in politics. With Citizens United and its predecessors and possible successor, our government can be and is bought and sold by the corporate sponsors and the wealthy. Without removing money from politics, no branch of the government will be brought into control.
Congress could act to correct any errors done by Executive action. Congress is capable of doing several things a year: go home for Easter, July 4th, Labor Day, Memorial Day, Christmas. Not one day mind you. They are not capable of voting up or down on judicial nominees or high and low executive nominees. Uh, do we have a budget? For all you critics, I say, tell that lazy Congressman of yours to get to work. And stay off C Street and K Street. I forget which street is for lobbyists and which street is for hookers, but its the same thing. Sorry Professor, I don’t buy the argument.
Right on !! We the taxpayer should go on strike! They can not jail all of us , where would they get the money to keep us in a manner we are accustomed to.the Chinese would not want to lend them anymore money because the collateral ( we the people) would not be available .
“The way out, if it is not too late, is to be for the rights of all, no exception.” -Jill
“Snowden Warns Us of the Dark Path Ahead”
March 10, 2014
http://wemeantwell.com/blog/2014/03/10/snowden-warns-us-of-the-dark-path-ahead/
“The final words are Snowden’s:
If you want to help me, help me by helping everyone: declare that the indiscriminate, bulk collection of private data by governments is a violation of our rights and must end. What happens to me as a person is less important than what happens to our common rights.”
(Snowden’s recent EU testimony:
http://site.d66.nl/intveld/document/testimony_snowden/f=/vjhvekoen1ww.pdf )
Always good to see you here, Jill.
JackSprat, It’s all there. Basic 8th grade civics. I know it’s tough for some to think their president is Nixon like, but he is. After he leaves office we are going to learn a lot. Hopefully the damage will be limited but he seems to be doubling down on The Chicago Way. The truth can be a mofo, but it will make you free.
“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.” – JT
Well said.
The dangers to society were real then too, but probably not near as utterly deadly as a malfunctioning ship of state is now.
Very timely.
A response from an intelligent commenter or Professor Turley himself would be helpful instead of fanboys, thanks. I’m seriously confused about what is occurring and I suspect others are also.