I have received a fair number of emails over the debate last week featuring my views on executive power on the Senate floor. The debate concerned the growing fight over immigration and I have been asked by journalists if I believe that the President is also violating the Separation of Powers with the suggestion of unilateral measures in the area. I am indeed troubled by the suggestion of a new round of unilateral actions by the President. However, the details are still unclear.
The display used in the Senate debate featured a quote from my recent testimony before the House Rules Committee on July 16, 2014:
“The President’s pledge to effectively govern alone is alarming, and what is most alarming is his ability to fulfill that pledge. When a president can govern alone, he can become a government unto himself, which is precisely the danger the framers sought to avoid . . .
What we’re witnessing today is one of the greatest crises that members of this body will face . . . it has reached a constitutional tipping point that threatens a fundamental change in how our country is governed.”
(I am inclined now to give all my future congressional testimony on huge blue boards like this one for emphasis).
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 listing such incidents of executive over-reach. My prior testimony has discussed unilateral actions in the immigration field that do raise separation issues.
I have also noted that some of these actions probably do fall within the strike zone for the president in using executive power. In areas like environmental law, the president has been given broader authority under statutes like the Clean Air Act. The problem is that the President has not offered details on the new round of unilateral actions. Some reports indicate that millions might be given new status. Of course, even concluding that the President can act does not mean that he should act without congressional action. Major changes in these areas should not be the result of unilateral action in my view. The Madisonian system is designed to allow different constituencies to come to bear in the bicameral system to take factional disputes and convert them into majoritarian compromises. The result has greater legitimacy as the result of the legislative product and often constitutes a better product after being put through the difficult drafting and amendment process. During times of division, less may get done. Both sides must either compromise or seek to change the balance of power in the next election. If the country and Congress is too divided to reach a compromise, unilateral action will only deepen the questions of legitimacy and over-reach.
We will have to wait to see the specific unilateral actions to judge their constitutionality. However, for those of us who are uncomfortable with the rise of the über presidency in the United States, the suggestion of a president dictating a massive change in the status of millions of people raises many of these same concerns.