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.
It’s officially a party, Nicky is baiting the baiter. The anti incumbent movement is in full swing.
nick, The people your refer to as PC probably won’t join you. I think the right wing already had its shot with the tea party so we will see. What are the demographics of the third party you envision? What would be the platform?
Indigo Jones,
I completely agree that Bush had royalists. That was also a disaster. I believe Bush invaded Iraq for wealthy corporations. For him and now for Obama, making the world safe for corporations has been a very successful foreign policy. Whole nations, including are own, are no longer even a semblance of democracy and the rule of law.
SWM, We’ve gone over your Paul family obsession. The third party will come from a coalition, not an ideologue. It will form swiftly and be a tsunami. My fear is the coalition is not led by a demagogue. We are ripe for a demagogue.
Wayne, Check out just how bi-partisan Congress and the president can be when they want to. Banking regs, funding war contractors, to name two places it can be seen–they are all over it. It is as bi-partisan as it gets! That’s because they all work for the same people. They differentiate just enough so people are terrified of the “other” party. This keeps people under control.
People focus constantly on elections and forget about what is happening right now. We need to pay attention to the actions of the powerful in the present. There will always be elections. What we need is people power which serves the cause of justice and the rule of law. We need it right now!
Thanks for what you wrote. I feel for our nation as well.
@jill
Bush had his royalists too:
http://rationalwiki.org/wiki/Philip_Atkinson_2007_Essay_on_Democracy
“By elevating popular fancy over truth, Democracy is clearly an enemy of not just truth, but duty and justice, which makes it the worst form of government. President Bush must overcome not just the situation in Iraq, but democratic government.
However, President Bush has a valuable historical example that he could choose to follow.
When the ancient Roman general Julius Caesar was struggling to conquer ancient Gaul, he not only had to defeat the Gauls, but he also had to defeat his political enemies in Rome who would destroy him the moment his tenure as consul (president) ended.
Caesar pacified Gaul by mass slaughter; he then used his successful army to crush all political opposition at home and establish himself as permanent ruler of ancient Rome. This brilliant action not only ended the personal threat to Caesar, but ended the civil chaos that was threatening anarchy in ancient Rome – thus marking the start of the ancient Roman Empire that gave peace and prosperity to the known world.
If President Bush copied Julius Caesar by ordering his army to empty Iraq of Arabs and repopulate the country with Americans, he would achieve immediate results: popularity with his military; enrichment of America by converting an Arabian Iraq into an American Iraq (therefore turning it from a liability to an asset); and boost American prestiege while terrifying American enemies. “
nick, Ron Paul thought he could put that coalition together, and he failed miserably.
niick, Maybe a 3rd and a 4th party. Don’t see progressives getting together with the anti- gay marriage, anti-govt healthcare, anti voting rights people.
The idea of a “dysfunctional” Congress is propaganda. If you look at Congress they will act when it benefits their benefactors. They will throw up roadblocks on cue when their benefactors tell them to do that.
If Congress were truly “dysfunctional”, they would need to be dysfunctional at all times. They would not be highly effective at passing legislation when it helps those who pay for their services. They would never be effective. That is what real dysfunction would look like.
This is like the federal govt. saying they don’t have money for food stamps but they somehow always have money for wars of empire. This is planned dysfuntionalism, not real inability to function. Choices are being made to benefit the people who have bought the services of Obama and most Congressional members.
Now let’s suppose it is true that Congress just won’t do what Obama wants? So, the answer for many Obama royalists is to make Obama a king, the imperial president. Never a thought crosses the mind of royalists that a king may change and be from the “wrong” party and want to implement the “wrong” ideas. Well it’s time to stop wanting a king to solve the problems of the US.
It is we the people who need to step up to the plate to solve the problems of the US. We should vote out the losers who are bought and paid for by the oligarchy. We should stand united in demanding a return to the rule of law. That is the only way out.
Jill,
I must admit that you are correct. I really feel for our country and I appreciate reading your well thought and articulate response. Thank you.
SWM, That’s a thought provoking piece by Balkan. Funny, how duopolists don’t even mention or want to think of an insurgent 3rd party, because that is what is going to change the dynamics. It’s coming, be afraid…be VERY afraid!
“Today, America’s political system seems remarkably dysfunctional. Many people believe that our 225-year-old Constitution is the problem. But what looks like constitutional dysfunction is actually constitutional transition, a slow and often frustrating movement from an older constitutional regime to a new one.
Americans last experienced this sense of dysfunction during the late 1970s and early 1980s – the “last days of disco.” The New Deal/Civil Rights regime had gradually fallen apart and was replaced by a new constitutional order – the conservative regime in which we have been living for the past three decades. By 1984, few people argued that the country was ungovernable, even if they didn’t like President Reagan’s policies.
In the same way, our current dysfunction marks the end of the existing constitutional regime and the beginning of a new one. This new regime may be dominated by the ascendant Democratic coalition of young people, minorities, women, city dwellers and professionals that elected Barack Obama in 2008 and 2012. Or insurgent populists associated with the Tea Party may revive the decaying Republican coalition and give it a second wind. As of yet, neither side has been able to achieve a successful transition, leading to the current sense of frustration.
Nevertheless, the transition to a new constitutional regime will be far more difficult than those effected in 1932 and 1980. First, the growth of the modern state and changes in the role of the presidency mean that even the most politically adept and fortunate presidents face greater obstacles to implementing transformative change than they once did; they are less able than past reconstructive leaders to disrupt existing institutions and clear the ground for a new politics. This, by itself, does not prevent the emergence of a new constitutional regime. But second, and perhaps more important, the current transition will be especially difficult because we are near the peak of a long cycle of increasing polarization between the nation’s two major political parties. That polarization greatly raises the stakes of a transition to a new constitutional regime. The defenders of the old order have every incentive to resist the emergence of a new regime until the bitter end.
A long and frustrating transition will have important side effects. First, a dysfunctional Congress tempts the Executive to act unilaterally, by asserting inherent executive authority or by creatively interpreting previous Congressional authorizations. Future presidents may use these new sources of power even when the period of dysfunction has passed.
Second, a period of sustained political dysfunction also tends to empower the judiciary vis-à-vis Congress. Courts will feel freer to assert themselves and will show Congress less deference. Moreover, judges appointed by the older dominant party, late in the regime, are less likely to engage in judicial restraint and more likely to push the jurisprudential envelope. This helps explain some of the Roberts Court’s recent work. Assisted by conservatives in the lower courts, and by energetic litigation campaigns by conservative civil society groups, the Roberts Court appears to be solidifying and extending the old regime’s ideological and constitutional commitments while it still can.
Our current political dysfunction will end, and a new constitutional regime will emerge. Yet injuries to our politics caused by years of political difficulty will remain. The coming constitutional order will offer new possibilities for political reform, but it will also bear the scars of previous struggles.” Jack Balkan, Balkanization
“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.”
Let’s be fair, though. The framers of the Constitution would be shocked by a lot of things, including the fact that he has to “go it alone” due to incessant gerrymandering by his opposition party.
They would likely also be shocked by his race. 😛
Propaganda pitting conservatives against Obama is a good technique to make certain people will not focus on what the president is actually doing. In order to keep people ill informed, confused and unable to take effective action, people must be pitted against each other.
Powerful conservatives who serve the oligarchy, in league with powerful liberals who also serve the oligarchy whip up people against each other. This type of propaganda works because there is some truth in the claims of both minions of the oligarchy. It also works because it functions to make people feel superior and good about themselves because, they are not like those other bad people over there. And yet, as we are taught how essentially different Obama is from Bush, if we care to acutally look, we see they are not really different at all. That is one of the big lies.
Another of those lies is that Congress is hopeless in gridlock. They are only in gridlock when it serves the purpose of the oligarchy. When it helps the oligarchy they will work together quite well and quite quickly. From that lie, Democrats say, well Obama must take over because how will we get things done if he doesn’t take it? He is a good guy, a great man, the best president ever! Of course he only wants what is best for our nation, so certainly, a good, decent, wonderful man like Obama should have the power to do anything he wants! Amen!!!
Well, I really don’t know why people still believe these lies about a man who has drone killed large numbers of men, women, children and babies,– a man who tortures and who goes to war at the drop of a hat. But people want to believe and we have the propagandists to help them keep their belief. Still, we come back to JT’s essential argument: Whatever the great and powerful OZ is doing today will eventually pass to another great and powerful OZ whom you may not agree with. The way out is to stand for the rights of all, even your most hated enemy. You cannot be so easily manipulated if you will hold to the truth that everyone’s rights must be protected or everyone will lose those rights.
You made some excellent and valid points that were well stated. However, I do disagree with the following point:
“They are only in gridlock when it serves the purpose of the oligarchy. When it helps the oligarchy they will work together quite well and quite quickly.”
I seriously doubt the Republicans will ever work in conjunction with the Dems on any issue—-if Obama is in favor of something the GOP’s automatic gag reflex kicks in.
http://talkingpointsmemo.com/cafe/kilgore-hey-conservatives-are-you-winning-or-losing
“Progressives have had a lot of sport recently contrasting conservative attacks on Barack Obama as a vicious law-breaking tyrant in domestic affairs with their simultaneous attacks on him as a weak, trembling figure on the world scene. How could Vladimir Putin fail to notice that Obama has struck so much fear into the hearts of his enemies at home, who are cowering in their homes awaiting assaults from IRS agents and affianced gay people? Hard to say.
But conservative self-contradiction about Obama’s spine reflects a much broader and deeper ambivalence about whether they are winning or losing the great battle for America’s culture and political system.” Ed Kilgore, TPM Cafe
The ACA originated in the Senate, but the mandate was declared a tax by the Supreme Court.
Tax bills, constitutionally, originate in the House.
So, exactly how is it still law?
The Constitution is being shreded according to plan.
A tax bill can now originate in the Senate and be re-written by the Supreme Court and altered at will by the Executive in charge of enforcing it.
and then there is silence…..because?
anyone who speaks up is labeled racist
or perhaps targeted by the IRS
or blackmailed by the NSA
WOW
“Congress is refusing to act….”
What are they refusing to act on? Is it additional changes that are unconstitutional or things that they disagree with?
I believe that gridlock is part of the plan to keep the powers in check.
Congress isn’t a “do nothing” group. Indeed the executive branch does nothing at all to act on congresses endeavors. In fact the I’ll take it one step further. The executive branch does everything it can to create road blocks, stall and prevent Congress’s work. The president won’t even acknowledge Congress or even have a dialogue. Where’s the obstruction here?
Grade school philosophy would rule here. “You work with me, I’ll work with you.” Or “You’ve got to give a little to get a little.”
I’m working under a different assumption about the Do Nothing Congress. They aren’t doing anything to protect their powers. That’s do nothing here.
Jonathan Turley is not the only scholar that testified at Congressional hearings about this. Congress has asked over and over again what can be done with a president over stepping his constitutional duties. There are only two options; using the power of the purse and impeachment.
The President will create a royal media hissy fit over the funding and who wants to start impeachment processes against our first American American president? Let’s add, who wants to do anything of this prior to midterm election? I think congress would be surprised. If they did act, they might have a better chance of winning more midterm seats, not less.
I would imagine that the executive branch is going to go more rogue over the next 9 months. They know Congress won’t do anything given the implications and the timing.
There’s quite a bit that I agree with in Obamacare. I have a very difficult time understanding why it was the citizens that had to take the fuzzy end of the lolly pop. If he’s so much for the little people, why not create regulations to impose on big business insurance companies instead? The agencies under the executive branch does this every day in my industry and every week there’s a new regulation. Surely there’s some agency that this could fall under without taxes the H.E. double hockey sticks out of the little guy.
You missed one: Terror Tuesdays vs 4th Amendment.
[No Person shall be deprived of life without due process of law.]