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
Be careful with pills and booze, Squeeky, but I guess you won’t need your nurse to give you a sleeper tonight.
Squeeky,
Hillary? Elizabeth Warren is a much better choice. But to each their own.
@Annie
First, “du hast recht??? ” No. I held down the pill and the booze. Plus some peanuts. But thank you for worrying!!!
Second, I come out of both fields. Didn ‘t you see me in the Kansas thread??? Plus, right now I am a Hillary supporter.
Squeeky Fromm
Girl Reporter
Squeeky, seriously? You consider yourself non partisan? I have yet to hear a comment from you that doesn’t come out of right field.
Squeeky Fromm, Girl Reporter
@Dredd
Thanks!!!! I have been thinking about switching to my non Birther blog one of these days but I am soooo non-partisan all I would do is irritate evrrybody. If you will remember the last time I was here, I drove some of regulars to madness.
Squeeky Fromm
Girl Reporter
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“Well, there you go again.” – Saint Ronnie The Elder
Good night all.
@Dredd
Thanks!!!! I have been thinking about switching to my non Birther blog one of these days but I am soooo non-partisan all I would do is irritate evrrybody. If you will remember the last time I was here, I drove some of regulars to madness.
Squeeky Fromm
Girl Reporter
Evolution
Jill, I used to read all the comments on this blog, but after a while I realized that there are a few here, like SMM, who are just incapable of looking beyond their small bubble. To them anyone who does not like this president’s character, or is critical of his competence, must be a “racist”. I do not waste my time anymore to read comments from such people, so I would suggest the same . Life is too short to waste reading comments from such characters.
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Yep.
Here is the short-nick version of your epic journey:
Jill, I used to read all the comments on this blog, but after a while I realized that there are a few here, like SMM, who are just incapable of looking beyond their small bubble. To them anyone who does not like this president’s character, or is critical of his competence, must be a “racist”. I do not waste my time anymore to read comments from such people, so I would suggest the same . Life is too short to waste reading comments from such characters.
Squeeky Fromm, Girl Reporter
@Dredd
OMG!!! We have some of the same epistemological interests!!! How KEWL!!! Who ‘d a thunk???
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Yep.
KEWL.
The birthers were gamed like we all are from time to time.
I followed their cases in the courts, all the way to the Supreme Court.
Even the Supreme Five wrong-wingers were embarrassed by their case, as were all the lower courts.
Anyway, good luck on your blog.
Your work will help some but not others.
Natch.
@Dredd
OMG!!! We have some of the same epistemological interests!!! How KEWL!!! Who ‘d a thunk???
http://birtherthinktank.wordpress.com/2012/02/08/the-sensual-birther-a-brief-exegesis-on-birther-epistemology/
Squeeky Fromm
Girl Reporter
That is a three pete.
Das solt Scheisskopfen sein, entschuldigen bitte.
Annie
ja
that didn’t work
Dredd
B)
Viele sind Scheisskophen, du hast recht.
John Oliver
“Faith and Trust”? Faith and trust is regressive; a return to the Dark Ages. That would explain the absence of reason and logic in your world Dredd.
I commend you on your effort though. Maybe in time you will open your mind long enough to realize humility is not a weakness in character.
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“Faith and Trust” drive civilization onward, as in the past (“History repeats itself, and that’s one of the things that’s wrong with history.” – Clarence Darrow).
Cognitive prisons trap you John, because doubling down is the denialist way to repeat history.
The people made you do it John, it is their fault the government is bad.
“In other words, a society does not ever die ‘from natural causes’, but always dies from suicide or murder — and nearly always from the former, as this chapter has shown.” – A Study of History, by Arnold J. Toynbee
What you think is “knowledge” for the most part is trust and belief in what someone has told you.
Someone you trust.
The consensus in Epistemological research over the centuries has firmly shown that to be the case.
You need to become aware of the nature of your game.
Like I am.
Nick Spinelli
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.
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It is a lot more buffoonish now in some ways.
A new “CEO” replaced the old one but SOS.
Will define that alphabet soup later.
“Faith and Trust”? Faith and trust is regressive; a return to the Dark Ages. That would explain the absence of reason and logic in your world Dredd.
I commend you on your effort though. Maybe in time you will open your mind long enough to realize humility is not a weakness in character.
Squeeky,
@Dredd
Hmmmm. I haven’t noticed the Big Birthers paying much attention to whatz hiz name.
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Me either.
As a matter of fact, I haven’t noticed anything about them.
By design.