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.
Six years ago I was giving Obama a serious look to see if I could support his candidacy. As a Republican, I was prepared to change but I was not going to do that without knowing as much as possible. I couldn’t find anything from his political record to condemn him, but then again nothing to support. His greatest accomplishment seemed to be his gig at Harvard; or maybe it was his rise to the top of the ticket. Either way, he carried no political baggage and he really had a motivational message. Now, about that message and one statement in particular.
“We are just X days away from a FUNDAMENTAL TRANSFORMATION of America. When I heard that, I did what any critical-thinking citizen should do, I began trying to find out what Obama’s vision was for America AFTER this transformation was completed. To this date, I have not seen one person ask Obama what he believed America would look like after it was fundamentally transformed. I believe we are seeing it and it’s got nothing to do with policy and everything to do with process. Because I couldn’t get an answer, I decided not to support him.
What if this Constitutional law professor discovered a weakness in the separation of powers? What if he had an enabling Congress or at least one chamber; what if he had the support of the Attorney General; what if he had a pen and a phone; what if he was able to overwhelm a traditionally slow-moving legislature by executive order or bureaucratic regulation; what if the major media outlets functioned as the White House communicator; what if impeachment would never be on the table; what if the citizens cared little about the process and more about the policy; what if he used the IRS to silence political speech; what if, the fundamental transformation was ALL about HIM; what if it was about separating the Legislative branch from their Article II powers; what if his legions of supporters were convinced the framer’s had it wrong; that the “intellectual elite” could outsmart human nature?
Wouldn’t we then have what we’ve got; a constitutional tipping point and JT’s Uber President?
Dems fear the fat Italian.
The NJ fat boy is moving up quickly. The only people who care about the GWB scandal are people who would never vote for him anyway. And there was a traffic scandal w/ Obama hobnobbing around LA last week. A pregnant woman was not allowed to cross the street to the hospital because of the motorcade. Not while it passed, but for 30 minutes prior also! She damn near had the baby on the sidewalk, but was able to hold on until she got into the delivery room.
nod.
Romney loses to Hillary 55 -42 in that poll. If Romney reads that poll, he won’t be running again although I think he would like to because the potential republican candidates are certainly lacking. i think Texas tea partiers Rick Perry or Ted Cruz should get the nod Ted Cruz ,along with Jeff Sessions. is certainly pushing the anti-immigrant meme.
leej, He is floating leaks out there via Dem pols. Luis Gutierrez, Dem Representative from Chicago, says amnesty for 5-6 million illegals. I agree we don’t know what he’ll do, but he is trying to see what he can do w/o starting impeachment. Or, maybe to start impeachment in a Machiavellian way.
CNN just released a poll. If given a do over in the 2012 election Romney wins 53-44%, but still would lose to Hillary.
He hasn’t said what he will do and yet already he is being criticized for what you/the right don’t even know may/might be done, if it is done.
Here’s the paradox. Behind the scenes Dems are saying this President has checked out. He is golfing as often as a retired insurance executive. He is doing fundraisers more than any other prez. He is hobnobbing w/ the elite and shopping for a house in Palm Springs. He’ll be spending 17 days in Martha’s Vineyard. These executive orders are indicative of a narcissistic child, angry that he is not getting his way and saying, “Nana nana boo boo.” I thought Dems were supposed to be smart and hardworking. This prez needed a kick in the ass by his wife and Valerie Jarrett when he was phoning it in during the 2012 election. He doesn’t want to be President because it takes skills he does not have. LBJ would have had immigration reform done 5 years ago. He was a politician. This guy is a demagogue.
Mr Turley, there are two disturbing trends here. You’ve been clear about the first: an Executive Branch deciding to govern by fiat, daring the other two Branches to stop it. The other trend is just as disturbing: people like Carlson, Beldar, Frustrated, who hold that it’s not just OK that power is being accumulated by Obama, but who welcome and encourage it.
History is replete with “leaders” who convinced their “people” that if the people would only allow the leader more control, more power, and their support for how it’s used, then the leader would finally (!) be able to defeat evil and provide goodness.
Unfortunately, that pattern has not been discarded. Clearly it was the path taken by Hitler, Lenin, Mao, all examples, now dead, from the mid-20th century. But the new breed comprises Putin, Iran’s Ayatollah, several African dictators.
So here we are, replaying 1912, 1933, 1947.
So, next we’ll hear from Obama’s Sheeple who will say: a) Bush did it, too !!!!, b) the Koch Brothers are doing it!!!!, c) that since I disagree with Obama, I must be a racist. Or the last resort of small minds: d) He had no choice, Congress made him do it!!!
http://nation.foxnews.com/2014/07/21/jeff-sessions-back-cruz%E2%80%99-anti-amnesty-bill-or-remain-%E2%80%98complicit%E2%80%99-%E2%80%98nullification-border%E2%80%99 “During his floor speech, Sessions endorsed a bill from Sen. Ted Cruz (R-Texas) that aims to curb the president’s executive amnesty efforts—and called on his colleagues to cosponsor it.
Sessions said:
Senator Cruz has a bill that would stop this presidential overreach. Sessions said. It’s very simple. It lays out that we won’t spend money providing legal documents to people unlawfully in the country as defined by the law of America and as defined by the Congress of the United States. So, I will ask, will you cosponsor Senator Cruz’s bill and let’s defend our constituents, or will our congressional colleagues remain complicit in the nullification of our laws and basically the nullification of border enforcement?
Sessions’ fiery floor speech focused almost entirely on how Congress hasn’t done much—if anything—to fight back against President Obama’s executive overreaches when it comes to immigration law.”
http://www.rawstory.com/rs/2013/04/24/sen-sessions-struggles-to-explain-biblical-basis-of-his-anti-immigration-views/ “Republican Sen. Jeff Sessions of Alabama on Monday attempted to explain why his views on immigration were not at odds with his professed religious beliefs.”
I think that the Luddites and Ignorati in the House and Senate should be allowed to emigrate.
The White House too.
Our President has done nothing more, than he has shown empathy for struggling Americans. Forced to choose, circumventing the treasonous republican’t pack of Feral Hogs, slopping it up at the trough of greedy wealth, he has done his very best. While he may indeed have done things he can be criticized for on technical points in, the end he has IMO been one of our greatest Presidents, and who will not be recognized as such. I doubt he will care about that, and will continue to put America first in his heart.
I would call the current situation Congressional Under Reach.
Whne the Commander in Chief dropped the bomb on Hiroshima there were those in Congress who thought that he should have had a Congressional approval resolution and those in the public who thought that the Commander in Chief was over stepping his bounds.
This week (July month) and all of August you will find your Congressman at his home district or off in Europe on the tab of the Koch Brothers. He/she will be drumming up money for self and others (not you). Yes they are quite concerned with immigration and all sorts of other issues. We dont need a President to step up to the plate do we JT?
So what if the House passes an immigration bill that puts teeth into enforcement, there is no guarantee it will get past Harry Reid or get signed by Obama. That doesn ‘t give Obama the right to cram it down the rest of the country. Plus, comparing raw numbers of executive orders per president is not a good way to measure overreach.
Squeeky Fromm
Girl Reporter
It’s not the number of executive orders, it’s what they are about. Most executive orders have to do with mundane issues that simply keep the government functioning, something in which our current president seems uninterested. One executive order is too many if it usurps the constitutional role of the Congress.
For a president who has issued far fewer executive orders than any president since FDR, in an environment where congress has expressly focused all their non-fundraising time on blocking this president at every turn and as a result has produced precious little useful legislation, and plenty of near-crises, I personally welcome his attempt to accomplish at least something, as long as it doesn’t overstep the strictest interpretation of the limits of his authority.
The Executive overreach turns to the Judicial. A recent assessment was that the ACA law was clear with supporting statements by its author and that there is a strong argument for Supreme Court review. The SCOTUS issued a political decision previously on the ACA. If it subjectively decides on the ACA by political affiliation a second time, Judicial overreach will be a fact.
This will be the “tipping point’s” sequel.
“When bad men combine, the good must associate; else they will fall, one by one, an unpitied sacrifice in a contemptible struggle.”
Edmund Burke – 1770
Yes, we have to wait to see what actions are taken, if any. Of course, Congress could preempt the President and actually do something for the good of the country.