The Great Excuse: Obama Blames The Constitution For His “Disadvantage” And The Need To Circumvent Congress

cropped-cropped-500px-scene_at_the_signing_of_the_constitution_of_the_united_states1.jpgAs many on this blog know, I often object to those who criticize our Constitution as a way of excusing their circumvention of civil liberties or the separation of powers. Some in the Bush Administration took that position in suggesting that our Constitution was somehow a contributor to the 9-11 attacks — in their push to pass the Patriot Act. President Obama seems to take up a similar lament to rationalize his repeated violation of the separation of powers in recent years. Obama raised the issue with donors to suggest that the Framers got it wrong in their design of Congress and Article I of the Constitution. Indeed, he appears to be a critic of the “Great Compromise” that gave small states an equal voice in the Senate. It is of course not his assuming legislative and judicial powers in the creation of what I have called an “uber presidency” that fundamentally changed our system. There is no real need for compromise of any kind in the new emerging model of executive power so it should not be a surprise that “Great Compromise” would appear particularly precious and unnecessary.

I recently testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. Obama has repeatedly suspended provisions of the health care law and made unilateral changes that were previously rejected by Congress. He has also moved hundreds of millions from one part of the Act to other parts without congressional approval. Now, his administration is reportedly changing key provisions of the ACA to potentially make billions of dollars available to the insurance industry in a move that was never debated, let alone approved, by the legislative branch. I just ran another column this month listing such incidents of executive over-reach that ideally would have included this potentially huge commitment under Obama’s claimed discretionary authority.

President_Barack_Obama President Obama is now responding by attacking the Constitution and saying that James Madison and others simply got it wrong by guaranteeing equal voting in the United States Senate. Of course, he has not shared such views with the public. Instead, he discussed them with a small group of Democratic donors who are facing increasing opposition from friends in supporting Obama. Obama met with these donors in a private event in Chicago and put the blame on the Framers: “Obviously, the nature of the Senate means that California has the same number of Senate seats as Wyoming. That puts us at a disadvantage.” These comments also appear on an official transcript. The President does not call to change the Constitution but laments about the structure of the Senate and the equality of small and large states.

Not to spoil the new post hoc spin but I find it less than obvious. The “disadvantage” that the President has been complaining about is the refusal of Congress to do what he has demanded. Ironically, he has faced more consistent opposition in the House, not the Senate. The House is divided according to population, which Obama appears to prefer.

The problem is not the Constitution but the division in the country. We are divided on a great number of issues. Roughly fifty percent of Americans hate Obamacare and want it repealed. Immigration and other issues continue to divide voters in both parties. While we have a representative democracy, it still has democratic elements. Congress reflects the divisions in the country. When we go through periods of division, fewer things get done and really big reforms or changes are particularly difficult. However, such division is no license to “go at it alone” as the President has promised. The Madisonian system is designed to force compromise and to vent the factional pressures that have torn apart other nations. That is precisely why the President’s actions are so dangerous. They are creating a dominant branch in a tripartite system that allows for unilateral action from a president. Such powers will outlast this president and will likely come back to haunt those Democrats and liberals who are remaining silent (or even applauding) this president’s actions.

As for the Senate, the “Great Compromise” in 1787 fit well in the anti-factional design of the Article One — even though Madison himself was once an advocate for proportional distribution and did not agree that large states would join together against small states. Where other constitutions (as in France) tended to allow factional pressures to explode outwardly, the U.S. Constitution allows them to implode within the legislative branch — funneling these pressures into a process where disparate factional disputes can be converted into majoritarian compromises. This happens through the interactions of houses with different constituencies and interests. The House tends to be the most responsive and desirous of the fastest reaction to national problems. After all, the members are elected every two years and represent smaller constituencies. The Senate has longer term and larger constituencies. It tends to put the breaks on legislative impulse. At the same time, the mix of different interests from large and small states changing the dimension of legislative work in the Senate — adding adding pressure for compromise and reevaluation.

The Great Compromise was forged after various plans from Virginia, New Jersey, and other states were debated. There was considerable support for bicameralism though William Paterson of the New Jersey suggested a single house system (with equal voting for the states). Some like Roger Sherman sought proportional representation in the “lower” house while guaranteeing equal representation in the “upper” house. Virginia delegates like Edmund Randolph and James Madison (as well as Alexander Hamilton) thought it should all be proportional in a bicameral system.

220px-RogerShermanPortraitThe conference rejected the New Jersey plan which would have created an unicameral legislature with one vote per state. However, the convention deadlocked on the Virginia plan. The issue was referred to committee and out emerged the Great Compromise or what was known as the Connecticut or Sherman compromise. The proposal was put forward by Roger Sherman and Oliver Ellsworth of Connecticut to blend the Virginia (large-state) and New Jersey (small-state) proposals. Sherman called for “That the proportion of suffrage in the 1st. branch [house] should be according to the respective numbers of free inhabitants; and that in the second branch or Senate, each State should have one vote and no more.”

There is a moderating influence that has come from the additional constituency factor of small versus large states in the Senate. In fairness to Obama, the division does appear more driven by party politics than geographics today. I am not convinced that the large versus small states are a defining political line in today’s politics and Madison may have been right about that point. However, some of the divisions between the parties reflect such geographic elements. Western and Southern politicians tend to be less supportive of environmental issues, national parks and other areas that reflect their interests of their states and citizens. In the end, however, the “disadvantage” faced by Obama is found in both houses, not just the Senate. Moreover, polls show considerable opposition in the areas where Obama is acting unilaterally like immigration.

As for the House, Obama complained that he is also at a disadvantage because “Democrats tend to congregate a little more densely, which puts us at a disadvantage in the House.” That is a perfectly valid call for political action. The Senate comments tend to reflect a growing criticism among some supporters that the Congress is rigged against the Democrats due to the equality of state voting.

Ironically, if there is one provision that could clearly be changed as outmoded it is the electoral college, which has consistently dysfunctional effects on our system. Rather than change the fundamental structure of Congress, that would be a change worthy of presidential advocacy. The changes that have occurred in the Constitution makes this relatively small provision a growing anomaly in our elections. The equality of states in the Senate is neither the cause of the current deadlock (given the role of the House) nor does it excuse the President’s circumvention. It seems to be an obvious post-rationalization for acts of circumvention.

So here is my only request. This is not the first veiled criticism of the Constitution by leaders of both parties. I have long ago stopped hoping that our leaders would maintain a logical and efficient approach to taxes, the environment, education, and other areas. I have come to accept that the executive and legislative branches will continue to waste hundreds of billions and harass trends toward growth. However, I continue to believe that our system can carry the huge costs of both branches and still benefit our citizens. The only limited request is that the two parties with a stranglehold on this nation leave the basic principles of the Constitution alone. That is all. They can destroy the economy, the educational system, and even global stability. However, the Constitutional structure was given to us by the Framers and has served us well. It has certainly served us better than our leaders.

In other words, what is “obvious” Mr. President is that it is not the Constitution that is the problem.

849 thoughts on “The Great Excuse: Obama Blames The Constitution For His “Disadvantage” And The Need To Circumvent Congress”

  1. Since most members of Congress if not all of them ignore the ‘will of the people’ and vote their personal philosophy on major issues,we should bypass them.
    Put issues important to the people to a national referendum
    If that were to happen,there are many politicians(mostly conservatives) who would be very unhappy. Mainly because the people would vote yes,on background checks,raising the minimum wage,infrastructure spending,rejection of war,Equal pay,and reproductive rights.
    Some say,we the people are not informed enough to be granted that much power. In other words,we need these snarky politicians to think for us. REALLY?

  2. They undermined the US Constitution by enacting the Rules of Professional Responsibility into law.

    The rules went from discretionary guideline to MANDATE BY LAW. It only affected the lawyers, district attorneys, judges and attorneys general. It caused the denial of constitutional rights of litigants, BUT their unconstitutional rules trumped the US Constitution.

    And they were not permitted to reveal the matter or fix it, it would violate the Confidentiality Rule.


    The Rules of Professional Conduct enacted by the Supreme Court of Pennsylvania have substantially affected the ‘jurisdiction’ of the Attorney General to act to address injustice and corruption within the courts. The Rule 1.6 mandate of ‘confidentiality of information’ with regard to client information undermines ‘everything’ where an attorney general’s clients include (1) the public, (2) the Pennsylvania government, (3) the Office of the Attorney General, (4) government agencies and departments statewide, (5) personnel within those agencies and departments, (6) and themselves.

    The attorney general is prevented and obstructed from law enforcement responsibilities by a mandate to maintain ‘confidentiality’ of ‘client’ information where it adversely affects the integrity of the judiciary, the reputation of legal professionals, self-incriminates, or negatively affects their client.

    The Supreme Court, by the same mandate, has caused a ‘lawful’ requirement to ignore injustice and judicial corruption within every court in the commonwealth.

  3. Schulte

    “generic fallacy”

    It’s the genetic fallacy. Not generic. And I have not committed it. So, you lied.

    ” You cannot let up can you. You cannot connect the dots on torture so you attack either Bob, Esq or myself.”

    I connected the dots. You just prefer ignorance.

    “The UN special rapporteur on torture recently recognized that outdated and unnecessarily restrictive drug control laws contribute to widespread failures of states to provide pain relief to patients in moderate and severe pain. The special rapporteur further categorized the “de facto denial of access to pain relief, where it causes severe pain and suffering” as CIDT, saying that “all measures should be taken to ensure full access and to overcome current regulatory, educational and attitudinal obstacles to ensure full access to palliative care.”

    Directly on point and has not been refuted by you, although you did try the genetic fallacy against Mr. Mendez, who is, indeed, and expert on torture.

    “Mendez is the founder of Human Rights Watch (America) and actually has skin in the game.”

    Genetic fallacy.

    “There is nothing on Wikipedia showing that he is an expert in this field.”

    A lie. Since you apparently didn’t even go look, he was even tortured, by Kissinger’s buddies down in Argentina:

    In 1970, he received his law degree from Stella Maris University in Mar del Plata, Argentina.[1]

    Early in his career, he became involved in representing political prisoners. As a result, he was arrested by the Argentinean military dictatorship and subjected to torture and administrative detention for 18 months. During this period, Amnesty International adopted him as a “Prisoner of Conscience,” and in 1977, he was expelled from the country and moved to the United States.[2]

    Subsequently, Mendez worked for the Catholic Church in Aurora, Illinois, protecting the rights of migrant workers. In 1978 he joined the Lawyers’ Committee for Civil Rights under the Law in Washington, D.C., and in 1982, he launched Human Rights Watch’s (HRW) Americas Program. He continued to work at HRW for 15 years, becoming their general counsel in 1994.[3] He is also a visiting scholar at American University Washington College of Law’s Academy on Human Rights and Humanitarian Law.

    From 1996 to 1999, Mendez served as the Executive Director of the Inter-American Institute of Costa Rica. He then worked as a Professor of Law and Director of the Center for Civil and Human Rights at the University of Notre Dame from October 1999 to 2004.[4]

    In 2001, Mendez began working for the International Center for Transitional Justice (ICTJ), an international human rights NGO. He served as its president from 2004 to 2009, and currently is its President Emeritus. He is also currently the UN Special Rapporteur on Torture.

    Mendez has taught human rights law at Georgetown Law School, the Johns Hopkins School of Advanced International Studies, and the University of Oxford Masters Program in International Human Rights Law in the UK.

    He has received numerous awards for his work, including the Goler T. Butcher Medal from the American Society of International Law; a Doctorate Honoris Causa from the Université du Québec à Montréal (University of Quebec in Montreal); the “Monsignor Oscar A. Romero Award for Leadership in Service to Human Rights” by the University of Dayton; the “Jeanne and Joseph Sullivan Award” of the Heartland Alliance.;[5] and the Doctorate Honoris Causa from the Universidad Nacional de La Plata, Argentina (National University of La Plata), June 10, 2013

    Ergo, the statement

    “There is nothing on Wikipedia showing that he is an expert in this field.”

    is false.

  4. Feynman,

    What do say of a person who repeatedly refuses to stand by his own words?

    For example, when someone says:

    “It is not an outrageous statement. Torture is the infliction of pain. When the pain can be removed by a drug, but the drug is withheld, the pain is being inflicted.” on 1, May 31, 2014 at 6:19 pm

    And another says

    “You also claimed that “Torture is the infliction of pain.”

    And the author says:

    “I did no such thing. I merely copied one of the definitions of pain. I never said ALL infliction of pain is torture”

    You know what they say Feynman; a man without his word is nothing.

    Perhaps you can remind the author that the best way to keep one’s word is not to give it.

    Or, some other pithy quote about refraining from making false claims, etc.

  5. Paul,

    I did in fact laugh out loud reading this:

    “You cannot let up can you. You cannot connect the dots on torture so you attack either Bob, Esq or myself. BTW, my note to the special rapporteur for torture went out this morning.”

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