First there is the record low polls of his popularity. Then there is the growing independent view that there is no chance that the Democrats can retake the House and that the GOP could not only gain seats in the House but retake the Senate. However, nothing likely prepared President Barack Obama for this. His controversial use of unilateral authority has been defended by . . . former Attorney General Alberto Gonzales. You may recall Gonzales who was so vilified for his politicalization of the Justice Department and blind support of executive power that he had a difficult time even landing a job. The Gonzales defense is part of a bizarre new world of Democratic politics. Democratic members of Congress recently lined up to quote Associate Justice Antonin Scalia for his restrictive views on standing — a view that has been used to bar public interest organizations in environmental and civil liberties cases. The Obama Administration now routinely pitches appeals to the four most conservative members of the Supreme Court on presidential powers and the most vocal supporters of the President’s use of virtually unchecked power is coming from former Bush officials. Such is the inversive world in which we live. The Democrats have largely abandoned traditional values tied to civil liberties, war powers, privacy, and other core issues in favor of supporting Obama. The result is that you find yourself left with Alberto Gonzales as your pro bono counsel.

Gonzales wrote his reassuring pat on the back to Obama in USA Today. This is the same Attorney General who defended the expansion of the American über presidency during periods of two wars, unrestrained surveillance, and of course our infamous torture program. One of his fiercest critics (and a critic of unilateral executive actions) was a junior senator from Illinois. Senator Obama denounced Gonzales as someone who saw himself as “the president’s attorney instead of being the people’s attorney” and an attorney general who was not “actually trying to look out for the American people’s interests.”

Now Gonzales is encouraging Obama to forget the naysayers including “[s]ome constitutional scholars” who cited English and early American history, and order sweeping changes affecting millions of undocumented individuals who came to the U.S. illegally.

Gonzales blames Congress for failing “to pass legislation to address these issues before heading home for the August recess.” That failure justifies, according to Gonzales, the President acting alone. Of course, that would be simply resolving the difference with Congress on the President’s terms. While the President says that Congress has failed to act in various areas, the House has passed various bills that have been blocked by the Democratic majority in the Senate. That is perfectly appropriate. However, what the White House really means is that the Congress has not acted as it has demanded. Neither side can agree. Indeed, the country is divided in many of these areas. Such deep divisions result in divisions in Congress. Less gets done. You have to compromise or you have to change the make up in Congress. It is not a license to “go it alone” and become a government onto yourself.

Gonzales is now Dean and Doyle Rogers Distinguished Professor of Law at Belmont University College of Law. This is perfectly consistent for Gonzales who critics saw one of the most extreme voices for blind executive power and someone who never seemed to meet an executive power that he did not like. Gonzales insists that “courts have generally been inclined to defer to the executive’s discretion in executing the law based upon competing priorities and budgetary constraints. Furthermore, often the courts refuse to even hear cases that present a political question.” However, what has been discussed is the wholesale change in status of potentially millions of people here illegally. Few would argue that such a change is consistent with the original intent of the immigration laws that use mandatory language of deportation. It is also precisely the reform blocked in Congress. Even accepting a historical level of deference in the immigration area (which is undeniable), this would be another case of a massive change ordered without congressional approval. Even if the President could get away with such a change, it is a bad practice that will further magnify the crisis over separation of powers. The Framers were correct in seeing the value of divided government to force the two branches to reach compromise, particularly on major federal changes like the proposed immigration orders.

We have not yet seen the specific changes that Obama is considering ordering on his sole authority. However, most of the proposals have been sweeping and troubling from a separation of powers standpoint.

While Gonzales recognizes that there might be some legitimate objections to such unilateral actions, he warns that we should not allow “the constitutional battlefield [to] become littered with the souls of innocent children. This is not just a classroom exercise or court room drama. This is a real world crisis involving human beings.” That is a strikingly familiar argument from the Bush Administration when constitutional objections over torture or war powers were consistently dismissed as abstractions or blindness to real-world threats and realities. Regardless of the merits, the proposed immigration changes are sweeping and should not be the result of a single person dictating such changes on his sole authority.

The Democrats can certainly criticize some Republicans for conflicting positions in the past but they may appear entirely untethered by core values. The repeated references to Scalia’s views on standing in opposing the House lawsuit was particularly odd. Scalia has long held the most extreme view of standing on the Court — even too extreme for conservative members like Samuel Alito. It is a view that has been used to defeat environmental protections and to block public interest groups from being able to be heard in court. It is now being cited as authority to block an effort by the House to be heard on separation of powers challenges. The Democrats appear to be following the advice from Kautilya’s Arthashastra that the enemy of my enemy is my friend. Of course, Kautilya (or Chanakya) would later, according to legend, be betrayed by his friend and burned alive. Not a particularly auspicious strategy with Democratic polls continuing to drop around the country.

Source: USA Today