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
What a scam, to focus on an “imperial President”, while giving the Congress a pass, such hypocrisy. As I said yesterday on the other thread, it’s positively Machiavellian.
WHY the push to let Congress off the hook? THAT tells me much about certain commenters.
Nick Spinelli
Bruce, You win the Hemingway succinct award. Kudos.
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Spinny, why don’t you leave the kid alone.
You have blown so much red smoke up his wazzoo he will be in ecstasy till midnight.
Bruce
What we have here is the most incompetent and inexperienced president ever. And it shows
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Wrong.
He whose name cannot be spoken has already taken the trophy and absconded with it.
Paul C. Schulte
Dredd and Annie – doing your job is not criminal. John Dean is way off base legally. However, about 80% of the Obama administration is illegal, if not criminal.
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Doing your job isn’t criminal either.
Irrelevant.
They are criminal because they take an oath then break it.
Perjury.
It is a crime.
Dredd – so me how Congress has violated their oath? The President is no problem.
Suri_mike
For the most part, the less congress does, the better offi we are…..
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Unfortunately, that is very true “lately”, but once was not so true.
Dredd – the way Congress is designed is to do little. So basically the less it is doing the more it is moving to equilibrium.
John Oliver,
…
The entirety of our government would like the citizens to believe the problem is simply an overreaching Executive branch or an obstructionist, do-nothing Legislative branch or an ideologically-driven Judicial branch. What they don’t want the citizens to realize is that all three branches and two political parties are the problem with three fundamental causes: Voter ignorance, apathy and dependence.
…
Government is a reflection of the Citizens; We are the problem and to point the blame at one party or one branch or one politician without taking responsibility as voters in this republic only confirms the diagnosis.
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You need to now spend 7 years studying psychology, especially Stockholm Syndrome and the Nation as Family Metaphor.
You are blaming the victim.
What do you call parents who blame their children for the parents’ mistakes, or take advantage of the children because they are ignorant compared to the parents?
And do you apportion blame among the citizens based on their IQ … the smarter you are the more you are to blame for bad government?
You are in effect saying that if an employee takes advantage of his or her employer, or if an employer takes advantage of their employee it is the victim that is to blame because that victim is dumb to have been taken advantage of.
Wrong. That is a con’s attitude toward the Mark.
The people have the right to expect that those they elect will fulfill the OATH they take once voted into office as a public servant.
The people do not take an oath to vote for the right politician.
The politician does however take an oath to follow the constitution which was set up to benefit the people.
You have it backwards John Oliver, which tells me a lot about you.
For the most part, the less congress does, the better offi we are…..
First of all, Congress works hand in glove with the President. They did it w/George (impeachment is off the table Pelosi), now they do it w/Barack. You just have to look carefully at what is actually happening. If there’s a banking, trade or war contracting bill, it gets the fast track. Next, you have to remember the need for partisans to believe that Congress and the president play for different teams with different owners. Penalty overtime for sloppy thinking!
Let me rewrite the crooks and liars piece: It’s rare that a criminal publicly announces his intent to commit a felony. But when it came to his scorched-earth campaign of destroying the Constitution, the Obama presidency isn’t shy about his plans!
I’m glad for a “do nothing” Congress, although they continue to spend and borrow us into the poor house. When things “happen” in Congress we get the USA Patriot Act and large spending bill that lavish our earnings on well connected businesses.
Look to the history of dictatorships in Central and South America, most started with an over-reaching executive and a weak or compliant legislative body and judiciary.
I think that Rep Boehner is a corporate stooge and a coward, but please keep suing. Hopefully this will create precedents that limit future presidents.
I am a 54 year old retired Navy veteran; I was a Republican and until the age of 47, I had never once read the Constitution or Declaration of Independence. I have spent the last 7 years studying American civics.
The entirety of our government would like the citizens to believe the problem is simply an overreaching Executive branch or an obstructionist, do-nothing Legislative branch or an ideologically-driven Judicial branch. What they don’t want the citizens to realize is that all three branches and two political parties are the problem with three fundamental causes: Voter ignorance, apathy and dependence.
The Intercollegiate Studies Institute surveyed 2,508 people across this country and discovered 71% failed a basic civics exam. http://www.americancivicliteracy.org/2011/summary_summary.html
Being generous, that may mean 2 out of 3 posters in this blog wouldn’t have a clue who to blame in this most current version of unconstitutional government. The spread between incumbency reelection rates and Congressional approval ratings should be enough to highlight the weakness in our representative government. In my opinion, of the approximately 65% of eligible voters that participate in the general elections, the majority wouldn’t have any clue which candidate to vote for if the R or D were removed from the ballot.
Government is a reflection of the Citizens; We are the problem and to point the blame at one party or one branch or one politician without taking responsibility as voters in this republic only confirms the diagnosis.
Dredd and Annie – doing your job is not criminal. John Dean is way off base legally. However, about 80% of the Obama administration is illegal, if not criminal.
Annie
http://verdict.justia.com/2013/10/18/republican-obstructionism-criminal
Is Republican Obstructionism criminal?
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Yes, but they are too big to jail.
@Annie
Res ipsa loquitur.
Squeeky Fromm
Girl Reporter
Squeaky it’s apropos for both threads.
Free Manson!
It is absolutely insane how many people think the the misbehavior of Congress is solved by the misbehavior of the executive. Solve one bad thing by doing another bad thing. The solution to one crime is the perpetration os another crime.
The solution for the problem with Congress is to find a way to fix Congress.
Beldar wrote “all of your Supreme Court Justices from Harvard and Yale”
Ginsburg started at Harvard and transferred to Columbia University to finish her legal education, but your point still stands. There are no justices from Stanford or any other West Coast school. There are no justices from the Midwest. The only diversity is that of Northeastern liberals versus Northeastern conservatives.
I have often ripped into JT’s posts here, but today he nailed it. Bravo.
Obama must think he will be able to stay in office forever. JT wrote than an “uber-President is only liberating when he is your uber-President,” but it’s even worse than that. Since Obama has often ruled by executive order, he will discover just how ephemeral those laws are. The next president could, for example, sign an executive order on his first day in office eliminating all of the special rights Obama gave to LGBTs. Live by the sword, die by it.
Another area JT could have mentioned is Obama’s international relations. I remember being dismayed during Bush the Younger’s reign at how he was dismantling alliances created decades ago. But Obama has surpassed Bush in that area, with the most recent example being a double-agent spying on Germany. I would say that Germany and South Korea are our top allies outside the Five Eyes Agreement. To spy on our friends is shortsighted and arrogant. We are not a self-sufficient island and cannot survive in the world without the assistance of our friends.
http://www.huffingtonpost.com/h-a-goodman/ronald-reagan-and-george_b_5550444.html Reagan issued 672 executive orders and was sued for violating the War Powers Act multiple times yet he was looked upon by many as a model president.
@annie
No, Annie. Republican “obstructionism ” is NOT criminal, but I suspect you have always known that. But gee lookee! You got to link Republicans and “criminal” in something in typical Democratic party shill fashion just like all those “Are Republicans Racist for Disagreeing With Obama???” hit pieces.
This kind of crap, while fun, is hardly informative and sheds little light on an issue particularly when thr question is not thoroughly discussed. As a matter of fact, this kind of tactic, the free-flying unsupported innuendo, can cause mistrials in court settings.
Sooo, how come you keep putting this year old smear link in multiple threadz???
Squeeky Fromm
Girl Reporter