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
So John O, why didn’t the conservative candidate win the 2012 election? Weren’t they totally awake yet?
Annie – there wasn’t a conservative candidate running in 2012. The way the state primary systems are set up are designed to knock candidates out early. Obama literally closed Hillary out of some early primaries and controlled the vote with his people.
Yes indeed, he’s awoken ‘something’ in conservatives. No doubt about it.
Annie, I don’t want Obama to go away. I don’t even consider his Presidency failed because he’s done more to awaken conservatism in this country than any other President in the last 100 years. The failure will be on the People if they don’t seize this opportunity.
Lloyd, This has been a failed Presidency for several years. Worst President since WW@2.
Dredd and Lloyd, they want Obama to give up and go away, not going to happen. History will reflect the very ugly time we’re living through now.
Dredd, I stand corrected. You do have the “right to expect”; but don’t let the fact that expectation defies reason and logic get in your way.
I see chains in your future.
This forum has changed SO MUCH for the better. Diversity, humor, wit, free thinking. There are a few remnants from when this was an echo chamber. But, they are now cartoon characters. We must adapt or perish. They cannot adapt.
Annie
I bet he will :’( his eyes out Dredd.
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“Obummer huwt my wittle heart when he snuck in heah from Kenyah and forged his pappazzz.
Snifff …. sniff …
And now he won’t let us beat him up …. yo anner ….
Make him go baaaaakkkk to hawwwwvvvvvard …
Oh yeah, and he beat me at golf once too …
Sniff … snifff …..
Jim Crow sent me an email real mad tooo …
Sniff … whine …. WAAAAAAAAAAAAAAAHHHHHHHHHH.
And he does preznitual orders like he was preznit Blush II or sumpin ….
boooo hoooooo …”
Good grief what losers.
A GOP senate that has has used the filibuster more than 400 times in the past few years – more than any congress in history by a long shot – a do-nothing GOP House that has been recognized as the least effective in history. GOP House shut down government at a cost of $24 billion wasted dollars. The only plan the GOP had in 2008 was to make Obama a one term president. A GOP that fought a healthcare plan that was once called Romneycare and was the brain child of the Heritage Foundation. I did not vote for Obama, and I am disturbed by many of his spy state actions, but I have never seen any president so vilified for trying to do the job he was elected to do. He won a large majority of the vote on both occasions and the GOP treats him like he lost both elections. It’s near shocking just how many in the GOP still claim he’s from Kenya, a Muslim, the antichrist, a socialist, an authoritarian, immigration conspiracies, impeachment treats, ‘Liar!’, weak on defence because he won’t go to war quickly over new fake WMDs and other nonsense. The racial overtones are obvious.
Can you imagine if Obama came out of the Oval Office, had a press conference and jost said ‘My fellow Americans. I just give up. Yup. I can’t do anything. Congress is ineffectual and the country and world are facing severe problems, but I can’t do anything about it. See you all after the November election. Maybe things will change, maybe not. But who cares.” It’s pathetic. I give Obama credit for at least trying to do something! It’s like watching a home burn and the captain of the fire department telling the people who own the home that he can’t do anything because the firemen aren’t able to decide on how to put the fire out. Do something!
If Obama did nothing he would be considered a failed president. He does something and he’s considered a tyrant. We live in strange times…..
Lloyd – Obama started out by doing ninner ninner ninner and thumbing his nose at the Republicans after being elected. He controlled both the House and the Senate so he refused to work with the Republicans. Part of Washington is compromise and Obama wanted his way or the highway. Even now, he expects the Republicans to compromise to meet him, but he won’t compromise to meet them. Meetings with Obama consisted of lectures by Obama on how it was going to be. The House (Republican-controlled) has annually passed a budget, which is part of its job, each year, Harry Reid has never brought it to a vote. The Senate (Democratically-controlled has not passed an annual budget since Obama was elected. So, the do-nothing part of the Congress is actually the Senate, not the House.
Bron
This is just going to continue until there is a real showdown and then I guess it comes down to who is willing to fire on whom.
The way the country is now, so philosophically divided, it would not take much for a civil war to break out.
I think the congress needs to slap him down a couple of notches, the steam will be let off somehow, I hope it is through the Constitutional provisions rather than an armed showdown.
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That is why racism is not good.
Wrong-wingers should lose the racism.
I bet he will :'( his eyes out Dredd.
John Oliver (@OurCivics)
Dredd: “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.”
…
John Oliver: “The people have absolutely no right to expect public servants will honor the oath of office.”
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I see wrong-wing politics in your future,
I wonder if Boney will weep on the witness stand?
Nick Spinelli
These are the mantras of Dem cultists.
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It is the mindset of wrong-wing fundamentalists who do not know cult from culture.
This is just going to continue until there is a real showdown and then I guess it comes down to who is willing to fire on whom.
The way the country is now, so philosophically divided, it would not take much for a civil war to break out.
I think the congress needs to slap him down a couple of notches, the steam will be let off somehow, I hope it is through the Constitutional provisions rather than an armed showdown.
Missing a post! What a surprise!
To clean up that last post-Annie, Democrats and Republicans alike should have impeached Bush/Cheney for the series of horrendous crimes they committed. Democrats took it off the table. Ask yourself why.
SMM, what I meant was, perhaps it is simply YOUR intent to smear…
Paul,
I agree that impeachment won’t happen. I’m only saying that it should. It should have happened to Bush/Cheney and it needs to happen to Obama/Biden. Except for Cheney, the rest are willing lackeys of the elites. In order to curb the power of these elites, we need to go through the elected govt. We should not be afraid to call for impeachment because the level of crimes committed by the current administration is horrendous. (Just so Annie won’t get upset, let me say that it was important for Democrats to have called for the impeachment of Bush/Cheney. Of course, they did not do so, taking it off the table.)
The brand of the year for 2016 will be Warren. She will not save our nation any more than Obama has. There are no saviors and it’s time to quit looking around for one to vote into office.
SMM, You seem to be unable to differentiate positions of people who oppose Obama. Some do so for racists reasons. No sane person would deny this. That is ugly and wrong. Obama’s color has nothing to do with his actions.
However, there are many of us who really don’t care what color Obama is. We do care about his war crimes, orders to spy on our citizens, economic policies which take from the poor and give to the rich and so on. You seem unable to see that one group is distinct from the other, or perhaps it is simply our intent to try to smear the latter by linking us to the former? Whatever the case, the two groups are not the same, and the link is a false one.
Certainly not Bob. This reminds me of the gun control arguments. In both cases, an inanimate object (Constitution/Gun) requires people to make it work. And in both cases, if someone wants to use it to harm rather than protect the natural rights of others, then we need to remove the person from the equation.
Is it any wonder then that both inanimate objects are under attack and for the same ends?
@Bob
You might want to take a chanson this:
http://m.youtube.com/watch?v=F2bweNNNOlY
Squeeky Fromm
Girl Reporter