We have been discussing the growing concerns over President Barack Obama’s series of unilateral actions in ordering agencies not to enforce law, effectively rewriting laws, and moving hundreds of millions of dollars from appropriated purposes to areas of his choosing. One of the greatest concerns has been his unchecked authority asserted in the national security area. I previously represented members of Congress in challenging Obama’s intervention in the Libyan civil war without a declaration from Congress. In the case, President Obama insisted that he alone determines what is a war and therefore when he needs a declaration. Since the court would not recognize standing to challenge the war, it left Obama free to engage in war operations in any country of his choosing. As with his approach in Libya, Syria and other combat operations, President Obama declared this week that he does not need any approval or even consultation with Congress if he decides to commit us again to war again in Iraq.
As in the past, Democrats are not just silent but actually applauding the circumvention of Congress — a precedent that will likely come back to haunt them if the next president is a Republican. House Democratic leader Nancy Pelosi of California said that the President does not need congressional approval to do go back into combat and then matter-of-factly that in their brief conversation, the President “did not give us an array of actions he was planning to take.”
While we do not expect combat troops on the ground, the White House appears to be exploring an intervention with air power and possible special forces. The White House simply told Congress and the public to trust their uber president: “Any action that he might contemplate when it comes to … the use of military force will be to deal with the immediate and medium-term threat posed by ISIL.”
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.
This week I debated the head of the Brennan Center at New York University on Obama’s unilateral actions and the dangers that they pose on the PBS program Newshour. While my co-guest repeatedly insisted that he is “not troubled” by the concentration of authority in the presidency, I again believe that Democrats will long regret that they support the rise of this uber presidency: