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.
Face the facts, Democrats and the liberal media have practically hog tied and tar and feathered anyone who spoke up against this president. When the GOP spoke up: Cruz filibustered, Rand sued, they were low down, revengeful racist Republican’s. Those who have supported the president and stood up for everything he’s done over the last 5 years have brought Congress to their knees. The Democrats who speak up are ostracized, so, like it or not, everyone in that party goes along with the Democratic machine. Now the GOP, says, “Well, perhaps if we leave him alone, people will begin to see the truth.” I doubt it, we are too proud to face the factual truth of our party affiliation.
Jill, Simply reading some of the commenters here gives you a disturbing look into the mind of hardcore Dems. It is mind numbing!
Max-1, I agree. What is saddest to me is that around 2007, most people, including Republicans, had actively repudiated an imperial president. People were against the wars, they had even turned against torture and spying.
It took the election of a Democrat, who ran against each of these atrocities, to legitimize every one of them. Obama was successful because he said he opposed all of these things. People were desperate so they did not really pay attention to his record, only his flowery speeches. Republicans voted for Obama because most people understood how wrong things were in our nation and believed Obama would do all the things he said.
Once he got in, and really, even before with his telecom immunity vote and lobbying on behalf of the bankers in 2008, he did all the things Bush did and more. At which point, Democrats rallied to torture, wars of empire, financial inequality, anything. If Obama did it, it was good.
The complete failure of Democrats to hold their president to account sealed the deal. Obama understood there was literally nothing he could not do. The only opposition he had were people Democrats and liberals would dismiss as right wingers. No amount of reason or evidence would convince people to oppose Obama’s injustices. This unreasoning, unwavering loyalty persists to this day. It is allowing the rule of law to be destroyed.
I do not know why Bush supporters were able to finally come around and oppose him, while Obama supporters remain securely in the fold. All I do know is the necessity of more people coming together to confront present injustice.
Jill,
I stopped reading ThinkProgress when Obama was elected.
Their rhetoric about holding High Officials accountable for war crimes, illegal spying, war of aggression and other Administration/Cabinet scandals ceased when a Democrat perpetrated it and in many cases, elevated it to more not less.
Their true colors, shining through… Partisan rose lenses.
It’s never when their guy, John Podesta joins an Administration that facilitates the continued perpetration of crimes against the Constitution.
Here is how controlled the media is. Let’s see, a “progressive” site takes their marching orders from the Obama administration. Yes, that seems like a fabulous idea! Liberals don’t understand the level of propaganda aimed at getting them to do the bidding of the imperial president and his shock troops.
Again, there is only one way out– care about the rights of all, including the right wing. (This is also true for Libertarians and the openly identified (as opposed to actual and hidden) right wing called the Democratic party. Stop focusing on elections and start paying attention to the current reality. Then, we need to clear our minds from all the lies. This will allow us to take action to address current reality.
“After the White House called and told Think Progress writers to stop criticizing them a meeting was called at Think Progress and writers were given new orders by CAP executives…”
http://news.firedoglake.com/2014/03/10/center-for-american-progress-takes-direction-from-obama-white-house/
raff, If you only knew how much you just speak the party line I wonder how you would view yourself? Flat tax. You could cut the IRS by 80%. And, I don’t want to re-debate Food Stamps. Under the coalition there would be none. You get cash money to spend as you see fit.
http://www.thedailybeast.com/articles/2014/03/11/millennials-unfriend-democrats.html While the younger generation has cooled off to both parties, they prefer big government and spending on social programs to cuts in spending and smaller government according to the Pew Report. Does not sound too hopeful for the libertarians either…..
First of all nick,
I did not suggest that cutting the government and lowering taxes is only the tea party. Secondly, as I suggested, the taxes that need to be cut are for the poor and middle class, not the wealthy and corporations who are bankrolling the tea party groups. Weren’t you one of the commenters suggesting that food stamps were being abused, even though the facts suggested the opposite? The food stamps were cut, but corporate welfare was increased or maintained current high levels at the same time. Food stamps are just one example of the poor getting direct access to assistance with very limited government involvement. Unemployment compensation was cut and corporate welfare was continued. The wealthy can pay much of their taxes at reduced tax rates because they receive much larger percentages of their income from dividends. Will your coalition take away the wealthy tax breaks that most of us can’t take advantage of?
Starvation would come to the bureaucracy. Those fat, lazy bureaucrats who get paid for doing nothing. They’ll have to go out and produce like most hard working people. I’m for giving money DIRECTLY to the needy. Cut out the layers of bureaucracy and give the money to those who truly need it. They can spend it all on candy, gambling, booze..whatever. If they starve, it’s on them. But, you know what, once they realize it’s on them, they won’t. Self preservation is primal. And, if anyone thinks cutting the government and lowering taxes is only Tea Party then they’re WAY OUT OF TOUCH.
nick,
you just described most of the tea party’s platform. We don’t need massive cuts unless those cuts are to defense and corporate and wealthy welfare. Good luck on getting that passed when many in that camp that you are describing are benefitting from the tax benefits and corporate welfare. Starvation would only come to the poor and the middle class. Austerity has never worked and it won’t work now.
raff, We agree the lobbyists control this government. Totally agree.
A third party will be socially liberal but fiscally conservative. They will be pro-choice[no late term murders however]. They will be pro gay marriage but won’t allow gay divorce[stolen from Zach G]. The main focus will be economic. Government spending cuts made drastically, across the board. The bureaucracy can only be controlled via starvation. Entitlements will be made solvent through tough adjustments. The coalition will be comprised by people who don’t comment on blogs like this. It will be folks who work hard, play by the rules, want little form govt. and much less intrusion on their lives. That of course means the TOTAL end of corporate welfare, something that has become pernicious in the past few decades. For you the cuts are inhuman, I know. The coalition knows it’s inhuman to over tax and over regulate it’s citizens. So did the framers of our Constitution.
Nick, Sounds grand.
Perhaps it is time to invoke Article V.
nick, How’s that?
nick,
I am a bit late to respond, but getting rid of the money in politics will stop this fire as you call it and prevent others. The only way any politicians can be held accountable is to take away their paymaster corporations and secret PAC money.
SWM, You’re thinking in that duopoly box. It’s a shame because you’re otherwise very smart.
@jill
> “Whole nations, including are own, are no longer even a semblance of democracy and the rule of law”
I agree, but I don’t know when our own country ever bore much semblance to democracy.
Voting rights were limited to white, land-owning men until the 1850’s. The 14th Amendment was written to protect corporations (through the due process clause: see http://www.jstor.org/stable/791947) just as much as to enfranchise male adults.
Women didn’t get the vote until 1920. The New Deal subsidized the poor without ever ending subsidies to corporations, and, after WWII, we chose militarism, which produced the military-industrial complex with manufacturing executives setting policy in non-elected positions, military generals acting as politicians and sitting on corporate boards of directors, and politicians in Congress receeding to the middle levels of power.
After the civil rights legislation in 1964 & 1965, Louis Powell’s memo of 1971 laid out the program that Conservatives have been following since. Which is to say, as soon we achieve a genuine public sphere defined by universal suffrage fully protected by law, the new battle cry becomes “smaller government.”
The tipping point was when we chose militarism in the 1950’s. And, specifically, when we chose a brand of militarism that relied on industrial production, creating the permanent war economy. That was the tipping point of a 100-year arc, beginning during the Civil War with Congress passing railroad legislation, giving railroad landgrants, and subsidizing the growth of monopoly.
Also the millenials are very pro-environment.
http://www.washingtonpost.com/politics/republicans-have-another-major-demographic-issue-on-their-hands/2014/03/09/398deb46-a79d-11e3-8599-ce7295b6851c_story.html Since young people by and large are so much more liberal that those over 40, a viable third party would have to be pro gay marriage and for national healthcare, while at the same time very sympathetic to Edward Snowden and the issues he raises. That is my opinion.