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
Warum nicht? Du weisst alles.
Squeeky Fromm,
Ich habbe keine annung.
Aber Ich mag “French Dip” sehr gern.
Boehner is afraid of the tea party, and especially so after Cantor’s defeat. His actions have little to do with morality or principles.
Nothing moral about letting unaccompanied kids being left hungry or abused at the border because of group of adults can’t find a way to help them for selfish political reasons. Nothing moral about letting 25,000 fellow citizens per year die because they can’t afford health care in the richest nation on Earth because a group of people sworn to protect them can’t agree on what to do for selfish political reasons.
Only the morally bankrupt would argue otherwise or tolerate the status quo out of some misguided allegiance to a principle that was promulgated precisely to effect just the opposite result.
There is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice.
~Charles de Montesquieu, Father of the Separation of Powers Doctrine
mespo – there is nothing moral about allowing unaccompanied minors to cross the border. That kind of parenting would have CPS living at your house or seizing the children and putting them in foster care. Pretending to be the Pied Piper to attract the children to cross the border is conspiracy.
http://www.newrepublic.com/article/118572/boehners-obama-lawsuit-test-gop-commitment-maximum-deportations “John Boehner would never cop to it, but his pending lawsuit against President Obama will be the final word on whether the GOP is the party of maximum deportations, including of immigrants eligible for the Obama administration’s Deferred Action for Childhood Arrivals directive—the group of upstanding undocumented immigrants who were brought to this country when they were children known as “Dreamers.”
Boehner will either include the DACA program among his list of the president’s supposedly illegal executive actions, and thus cement his party’s standing as one that represents the reactionary anti-immigrant minority in the country; or he’ll leave DACA out, giving tacit consent to the program and infuriating the anti-immigrant faction of his own conference.
And he may have just tipped his hand toward the anti-immigrant bunch.
In a Sunday CNN.com op-ed, Boehner subtly alluded to his underlying thinking by making clear that his pursuit of legal action is a last resort—the end of a concerted legislative effort to rein Obama in, specifically with respect to his immigration policies.”
Mespo, why limit it to this President or this Congress?
@Bob Esq
“May we ” opt for bon jus instead???
Squeeky Fromm
Girl Reporter
Should read: “it does NOT follow that the Constitution may be ignored and violated simply to compensate for said executive’s legislative ineptitude.”
Only the morally bankrupt would argue otherwise.
Kennedy couldn’t get a civil rights bill passed; but LBJ did.
When a political party places the antithesis of an LBJ into the white house it does follow that the Constitution may be ignored and violated simply to compensate for said executive’s legislative ineptitude.
Brian Bertha:
“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.”
***********************
Hyperbole aside, could you articulate just one fundamental right you have been denied since the establishment of the 213th Congress or the election of Barack Obama on this “slow steady march into Tyranny”? If Tyranny is always this slow, it’ll take our grandchildren’s grandchildren to recognize it.
“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.”
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I think that’s a false equivalency since those politicial IEDs are trained directly at the Oval Office — though I see the hyperbolic comparison. Obama had three choices when threatened with suit. First, he could have admitted he was wrong and acquiesced earning not the respect but the disdain of his antagonists and thus weakening his Presidency. Second, he could have said nothing and let the Repubs set the media dialog on the issue with their echo chamber. Third, he could defy the do-nothings and rest assured that any decision on the merits wouldn’t come until well after his term ends. He would thus have set the battle lines and have the full array of arguments at his disposal to prove his point in the the only court that matters to a president — the court of public opinion.
I’m looking for arguments that either of the first two courses of conduct makes any sense either legally or politically.
“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.”
Mot juste?
Or mots justes?
Why would anyone assume pointing the finger at the voter’s lets Congress off the hook? If you want to hold Congress accountable then you better engage the voters.
Annie – “WHY the push to let Congress off the hook? THAT tells me much about certain commenters.”
Who’s letting congress off the hook? And for what? Not wanting congress to pass more freedom restricting laws is not letting them off the hook.
I work in the medical profession. I would never hire a medical worker that displays what I call, “the deadly combination” … incompetence combined with arrogance. One night, an order came into the pharmacy for a pre-chemo fluid IV: the doctor had written D5W 1/2NS, 20K w/ 2amp Mg @ 200 ml/hr… the inexperienced pharmacist input the Rx and made 2 liters of fluid & sent them to the floor. I happened to go into the IV room and saw two empty 20 ml vials of Magnesium left in the hood (two in the trash). When questioned, the pharmacist nonchalantly stated the IV were made w 2 amps of Mag and 20K– I immediately called the floor…
So, if the House decides that the country should not be governed, the President has no choice but to do nothing as well?
So, “sue me” is the same as “bring ’em on.”
Funny, I don’t see thousands of dead Americans and hundreds of thousands of innocent civilians laying around rotting in the streets… We haven’t been lied into any $2 trillion wars lately… you know, the ultimate in uber-Presidency…
I’d love to see just one of the authoritarians, or even the confused supply-sider Glibertarian, show where they had similar complaints for GW Bush. Like Professor Turley did. In fact, I’d bet a few of the authoritarians and confused Glibertarians in here had pretty harsh words when Professor Turley was saying these things about your Uber-Cod-Pieced President.
But then consistency isn’t really a conservative trait…
@Nicks
Thanks Nick!!! Just wait til I get to a real keyboard again!
Squeeky Fromm
Girl Reporter
“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.”
Dredd, learning is a life-long activity and I won’t assume I have all the answers. If I need to take another look at Stockholm syndrome or examine much closer the psychology behind addiction then so be it. Perhaps I’ll find answers to why otherwise intelligent people will ignorantly believe human nature can be tamed by an oath of office.
The people have absolutely no right to expect public servants will honor the oath of office. What we have instead is a responsibility to ensure they do and THEN exercise our right to vote them out of office should they fail in their constitutional duties. Representative government is not some “fire and forget” weapon. If you treat it as one then in time (now) that weapon will target us.
Squeeky, The more I read from you the more I realize how much we missed your free thinking here. Well, the cultists didn’t miss you.