Below is my column yesterday in the Sunday New York Daily News on the unfolding controversy over President Obama’s unilateral actions to circumvent Congress. The pledge of the President to “go it alone” has already resulted in court losses for the Administration and a growing separation of powers crisis. I 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. I ran another column recently listing such incidents of executive over-reach that ideally would have included this potentially huge commitment under Obama’s claimed discretionary authority. I happen to believe that the President is right in many of these areas but that does not excuse the means that he is using to achieve these goals.
The unanimous decision of the Supreme Court late last month that President Obama violated the separation of powers in appointing officials is the type of decision that usually concentrates the mind of a chief executive. Obama, however, appeared to double down on his strategy — stating in a Rose Garden speech on Tuesday that he intended to expand, not reduce, his use of unilateral actions to circumvent Congress.
Summing up his position, the President threw down the gauntlet at Congress: “So sue me.”
The moment was reminiscent of George W. Bush’s taunting Iraqi insurgents over 10 years ago by saying, “Bring ’em on.” It was irresponsible bravado from a man who was not himself at the receiving end of IEDs and constant attacks that would go on to cost us thousands of military personnel. I imagine some lawyers at the Justice Department may feel the same way about Obama’s “sue me” taunt. They are the ones being hammered in federal courts over sweeping new interpretations and unilateral executive actions.
The renewed promise to go it alone is a familiar refrain from this President. He even pledged to take unilateral action to circumvent Congress in front of both Houses, in his State of the Union address this year — to the curious delight of half of Congress, which applauded wildly at the notion of being made irrelevant.
The President was as good as his word. When Congress failed to pass the Dream Act loosening immigration laws for certain groups, the President ordered the same result unilaterally. His administration also ordered massive changes in Obamacare — from lifting statutory deadlines, to exempting classes of business, to shifting hundreds of millions of dollars from appropriated purposes to other uses.
The political slogan of “no compromise” has migrated into legal strategy with disastrous results. That is precisely what happened in the recess appointments decision in NLRB vs. Canning. I testified on the President’s recess appointments in Congress after they were made and said that the nominations in my view were flagrantly unconstitutional.
The fact that the administration decided to force a confrontation on such a weak case shows not just a lack of judgment but a cavalier attitude towards the costs of such losses. While he clearly has authority to set enforcement priorities in areas like immigration law, Obama has repeatedly stepped well over the line of separation.
These acts of defiance of Congress often come with chest-pounding acclaim, but they also come with costs. For example, by violating the Constitution on recess appointments, a huge array of rulings out of the National Labor Relations Board could be invalid — creating havoc in the area.
Likewise, the President’s recent loss in the Hobby Lobby case, regarding contraception provisions of Obamacare, will require huge changes in such coverage . In a case that may be issued any day now in Halbig vs. Burwell, the D.C. Circuit could strike down another unilateral policy on tax credits under Obamacare that would mean that the administration wrongly committed billions of dollars without authority. That decision could jeopardize the very viability of health-care reform.
In our system, there is no license to go it alone. Rather, the Republic’s democratic architecture requires compromise. The process is designed to moderate legislation and create a broader consensus in support of these laws. Nor is congressional refusal to act on a particular prescription of how to fix the economy or repair immigration laws an excuse. Sometimes the country (and by extension Congress) is divided. When that happens, less gets done. The Framers understood such times. They lived in such a time.
While Obama did not create the über-presidency, he has pushed it to a new level of autonomy and authority. It is a model that Democrats may soon regret. Just as Obama has unilaterally rewritten federal laws and ordered the nonenforcement of others, the next President could use the same authority to gut environmental or employment discrimination laws. An über-President is only liberating when he is your über-President.
And whether it is “sue me” or “bring it on,” presidential taunts tend to play better politically than practically. The invitation for a congressional lawsuit may sound on its face like it’s welcoming judicial review, but it’s not. Obama’s administration has fought to block such review by challenging the right of members and citizens to be heard in federal courts.
President Obama’s taunt will no doubt be answered in kind. Indeed, the House is preparing just such a lawsuit. And so, our national politics have finally descended to the politics of the schoolyard playground. However, unlike on the playground, presidential taunts have constitutional consequences.
Jonathan Turley is a law professor at George Washington University.
New York Daily News June 6, 2014
Reblogged this on Reality Check.
Bruce, You win the Hemingway succinct award. Kudos.
What’s next from this President? “I know you are what am I?” or “If you love it, why don’t you marry it?”. He sounds like a ten year old.
Great column and post. Being a PI, I pick up on body language and other cues to get an accurate read on people. I attribute this petulant behavior as going back to his childhood, which is where all of our behavior derives. An absent father and an indulged childhood is Obama’s history. The aspect of Obama’s body language that has increased noticeably is his swagger. After being introduced he has always had a swagger as he walks up to the podium. But, the last year or so it has increased. It is now an “in your face” swagger. It is accompanied by consistent words like, “So, sue me.” I misread this man in 2008. I thank God I am not a cultist and I am able to make up my own mind.
What we have here is the most incompetent and inexperienced president ever. And it shows
Mr. Turley, it is so refreshing to see someone put aside their political views for the good of our nation. I am disheartened to find so many Americans using the logic that the “ends justify the means.” I am a stout conservative, but I feel that if a conservative president was circumventing our constitution I would want him out of office – for the good of our Republic. Our separate, but equal 3 branches of government is critical to our form of government. Our current President, who is supposed to be a Constitutional Scholar somehow thinks the Presidency is a Kingdom. The People’s House represents it’s constituents. Whether we like it or not, the Representatives are doing what their constituents want done….putting the brakes on a power hungry president. Mr. Obama campaigned in his first election that he would unite our country and work with “the other side.” However, his rhetoric from day one has been to demean Republicans in speech after speech. I find him a pathetic leader. He fails to lead – sell his vision – but excels at blame. While I find his presidency sad, it is even more sad that citizens fail to see the damage Mr. Obama is doing to our country. Someday there will be an Republican President and when he or she exercises the precedent setting actions of Mr. Obama, the other side is going to rue the day that they supported abuse of Executive power. I will also rue the day. But the cries of the supporters of our current President will ring so hollow. No matter what one’s political views this is a very sad and serious time for our Republic.
Everyone decries the do nothing congress. Indeed their approval rating is extremely low. The nation will not fall apart in 6 months if not another bill is passed by this do nothing congress. And if it is as bad as everyone says then there will be a massive turnover do to election results in November.
Here is a prediction, we will put in a minimum of 85% of our elected people back in office and our gridlock will continue. Don’t tell me how bad it is if we reelect 85% of our Congressman and Senators.
We the People can change this mess and we are choosing not to.
http://verdict.justia.com/2013/10/18/republican-obstructionism-criminal
Is Republican Obstructionism criminal?
Who needs the Reichstag anyway? We can build the autobahns, re-militarize the Rhineland, annex Austria and parts of Czechoslovakia all without their input.
http://crooksandliars.com/jon-perr/guilty-charged-how-gop-killed-washington
“It’s rare that a criminal publicly announces his intent to commit a felony. But when it came to their scorched-earth campaign of obstructionism to destroy the Obama presidency, GOP leaders weren’t shy about their plans. While 15 top Republicans.”
*their :/
Does the Congress not have a responsibility to govern? Seems to me this is there fault, and the president has said as much, since the House refuses to do it’s job. In my opinion, those jerks who refuse to work need to removed from office immediately. If i pulled that crap at my job, I’d be fired.
The democratic congress sued Ronald Reagan several time over violations of the War Powers Act. He is still the patron saint of the republican party.
An inspiring recitation of some constitutional principles that Obama seems to have conveniently forgotten.
The president AND the congress are so far over the line on the power of the federal government that they ALL risk a sudden and complete return to the original intent of the constitution as defined by the Enumerated Powers in Article 1 Section 8 all the rulings that have occurred since are opinions in favor of more intrusive government and a slow steady march into Tyranny
The list is long and stayed tuned for the finish: Mugabe, Amin Dada, Taylor, Biya, Abacha, Toure, Nguema, Barre, Al-Bashir, Habre, Mengistu, Bokassa, Sese Seko, AND (drum roll please) Obama. Over and out.
One kind of suit is formal impeachment. The outcome is probably already known regardless of facts. This Senate would probably not convict. But wouldn’t it be nice if the blatant open violation of the U.S. Constitution, surely a High Crime or Misdemeanor, a violation of a solemn oath, became well known and public, at least?
We folks on Reumulak think that Putin does a better job. But Putin does not have your three partitioned government. Putin is a dictator. Since you do not have a so called Legislative Branch you need to amend your so called Constitution. And why are all of your Supreme Court Justices from Harvard and Yale and why do all but three hail from New York, New Jersey? I am reporting this article back to my planet and am awaiting orders to go to Europe and examine their way of doing business or not.
The Commander in Chief sometimes has the duty to “go it alone”. In military affairs especially. As to the notion that the President has lost judicial appointments because of his so called “go it alone policies” is possibly true but we have to sort out all those nominees who got sat on for years before the so called go it alone policy.
We have a dysfunctional Congress. It is so dysfunctional that visitors will not use the toilets in the Congressional office buildings.
We have a do nothing Congress. If Obama was not speaking and doing things from the White House you would call him a dysfunctional do nothing President.
Reblogged this on BLOGGING BAD w/Gunny G ~ "THE CLINGERS".