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
@NickS
And :
You don ‘t have any EMMMPATHEEEEEE!!!
Squeeky Fromm
Girl Reporter
John Oliver,
While it may be true that socialism is legal plunder and a perversion of the law, it does not follow that the very architecture of this government must be disposed of to accommodate a certain executive’s legislative ineptitude.
These are the mantras of Dem cultists.
SEXIIIIISTS!
HOMOOOOPHOBES!
RAAAAACISTS!!!!!
“Above all, if you wish to be strong, begin by rooting out every particle of socialism that may have crept into your legislation.”
the re-animated corpse of Frédéric Bastiat on why he would repeal Obama care.
http://bastiat.org/en/the_law.html
http://www.teaparty.org/impeach-obama-petition/ Sign it.
Jill, It would be a dream come true for the birthers and racists.
Squeeky Fromm,
http://en.wikipedia.org/wiki/French_dip
Mit au jus bitte.
Jill – there are not enough votes in the Senate to convict Obama right now and Biden would become President. Even with a take over of the Senate there may not be enough votes to convict Obama, Biden would still become President. That would throw a major monkey wrench in either Hillary’s or Elizabeth Warren’s plans for 2016.
“The Complete Perversion of the Law
But, unfortunately, law by no means confines itself to its proper functions. And when it has exceeded its proper functions, it has not done so merely in some inconsequential and debatable matters. The law has gone further than this; it has acted in direct opposition to its own purpose. The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime, in order to punish lawful defense.
How has this perversion of the law been accomplished? And what have been the results?
The law has been perverted by the influence of two entirely different causes: stupid greed and false philanthropy. Let us speak of the first.”
Frederic Bastiat “The Law” 1848
What is the problem with impeaching Obama? It’s very much ashame that Bush was not impeached. It is equally a shame that Congress will not impeach Obama. Congress should do so because a real case can be made, just as it could have been made w/regards to Bush. It means something when citizens are so partisan they are willing to see the rule of law destroyed so their leader can remain in power.
What if your leader doesn’t deserve to remain in power due to the commission of illegalities?
“It is important, likewise, that the habits of thinking in a free Country should inspire caution in those entrusted with its Administration, to confine themselves within their respective Constitutional Spheres; avoiding in the exercise of the Powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power; by dividing and distributing it into different depositories, & constituting each the Guardian of the Public Weal against invasions by the others, has been evinced by experiments ancient & modern; some of them in our country & under our own eyes. To preserve them must be as necessary as to institute them. If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.”
–George Washington, 1st President and “Father of his country”, Farewell Address
“AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to.”
John Locke, Philosophical Father of the Declaration of Independence
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of TYRANNY. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.” — Federalist 47
“But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” — Federalist 51
— James Madison, Father of the United States Constitution.
And just WHO will be paying for this lawsuit? Taxpayers?
“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”
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Monsieur Villeforte,
Speaking of Montesquieu and the importance of principle…
La corruption de chaque gouvernement commence presque toujours par celle des principes.
Translation: The deterioration of a government begins almost always by the decay of its principles.
http://www.washingtonpost.com/blogs/post-partisan/wp/2014/07/07/boehners-unprincipled-fight-with-obama-over-separation-of-powers/ “Once Boehner’s raucous caucus and their constituents realize that such litigation probably would not be resolved until long after Obama left the White House, I have no doubt they will insist he be punished while in office. If the GOP succeeds in taking the Senate in the November midterms, then impeachment becomes a scarily viable option.”
@Bob
I was not aware the French dipped??? I know they “throw down” from time to time and have to be ‘pached up. Hmmm. Live and learn.
Squeeky Fromm
Girl Reporter