With no political capital left and much of his legislative initiatives dead in Congress, President Obama’s administration recently announced that he intends to use executive orders to advance his agenda. According to White House chief of staff Rahm Emanuel, “We are reviewing a list of presidential executive orders and directives to get the job done across a front of issues”. Those issues include everything from budget commissions to environmental law to health care funding.
Of course, executive orders are nothing new. They have been around since at least Lincoln’s so called “Emancipation Proclamation” and probably before that. George W. Bush signed the most ever as president and was rightly criticized by Obama in his campaign for president. This is key because it doesn’t matter which party controls the White House. When push comes to shove and the president can’t get his way he resorts to this underhanded tactic.
But, it’s more than underhanded; it is downright unconstitutional. As schoolchildren, we are all taught that our federal government is composed of three branches. The legislative makes the laws; the judicial judges the laws for constitutionality; and the executive acts as the top cop by enforcing the law. Congress has power to legislate, not the president. The closest he/she comes to this power is his/her ability to advise Congress, “and recommend to their Consideration such Measures as he shall judge necessary and expedient” .
The Founders knew that separating the powers of government into three different branches would prevent any one branch and/or person from becoming too powerful – thus potentially infringing upon the rights of the citizenry. Through executive orders presidents circumvent the process reserved to Congress because they have the force of law and at times have horrendously violated the rights of American citizens. For instance, Franklin Roosevelt issued executive orders that deprived Americans of their property without due process of law by seizing their gold during the Great Depression and that unconstitutionally suspended the writ of habeas corpus by interning Japanese-Americans during World War II. More recently, George W. Bush issued an executive order that allowed his administration to unconstitutionally wiretap the phone conversations of Americans without a warrant. Now, Obama, like his predecessors, is unable to get his unpopular policies through Congress, so he will violate the supreme law of the land by usurping the powers of another branch of government.
But, the current occupier of the Oval Office is not content with stopping there. His aides last month indicated that he will reserve the right to ignore enforcing parts of bills he considers unconstitutional. This is reminiscent of Bush’s statement after signing an anti- torture bill that he would interpret the new law in any way he chose. There are several things wrong with this position. First, the Supreme Court has the power to declare all or parts of laws unconstitutional. Second, if the president doesn’t like a part of a bill then his constitutional recourse is to veto it and hope Congress amends it to his liking. Third, jury and state nullification are considered outside the law. The president is essentially proposing executive nullification – the same thing. Why is there a double standard? Sorry Mr. President, you do not have a line item veto power. You really must accept all or nothing when it comes to congressional acts. Not doing so is unconstitutional and a usurpation of the High Court’s power.
Article comments
— go to most recent comments1 - Christine
This is an utter outrage! Not your article, Kevin: Obama's planned actions. I'm glad you wrote about this.
2 - zingzing
"This is an utter outrage!"
so the reason why he figures to do this isn't an outrage? and were you politically ignorant of this type of thing from 2001-2009, or have you been outraged the whole time?
3 - Glenn Contrarian
Kenn -
While you were being SO outraged about recess appointments - which Obama has only threatened to do thus far - where is your sense of righteous outrage at the GOP senator who was blocking SEVENTY otherwise routine appointments just so he could have some more pork for his state?
Ah, but who am I kidding? Apparently, it doesn't matter to you that the GOP filibustered more times in 2009 than in the 1950's and 1960's combined. Apparently, it doesn't matter to you that the GOP is on track to DOUBLE the the total filibusters they held in 2010. Apparently, it doesn't matter to you that after quite a few of these filibusters were ended by party-line cloture votes, they then voted FOR the very bill they were filibustering!
AND apparently, it doesn't matter to you that some of those filibusters have been against bills that Republicans have co-sponsored!
Apparently, the only thing that DOES matter to you is that the guy in the Oval Office isn't a Ron Paul clone.
So tell us, Kenn - since the Republicans had been holding up routine administrative appointments in some cases since last March, and since GOP senator Richard Shelby was putting a blanket hold on ALL appointments until he got some more pork for his state, please tell us what YOU would have done to get these appointments made in the face of the Party of No.
You also complained that Obama's 'usurping the powers of another branch of government' because he can't 'push through unpopular bills'. Um, Kenn - last I recall, the Democrats have a significant MAJORITY, and the ONLY reason they haven't pushed through many of those same bills is because they haven't always had a party-line 60 votes in order to overcome a filibuster supported by the strictly party-line 40-vote Republican side of the senate. The Democrats bills WERE in line with the will of the people...unless one listened only to conservative media. As you can see in this article by Nate Silver, the Republicans are significantly more often on the wrong side of public opinion.
But, the current occupier of the Oval Office is not content with stopping there. His aides last month indicated that he will reserve the right to ignore enforcing parts of bills he considers unconstitutional. This is reminiscent of Bush’s statement after signing an anti- torture bill that he would interpret the new law in any way he chose.
Last I recall, the president is sworn to uphold and defend the Constitution of the United States. Your article didn't mention whether this referred to bills that he willingly passed or bills that he would veto in the first place...but if the current president (who as an experienced constitutional lawyer probably knows far more about the Constitution than anyone on BC) sees legislation that has passed that contains unconstitutional provisions, frankly, sir, it would be his DUTY to not only NOT enforce said provisions, but also to work diligently towards removing those provisions. And next time, please include references to back up your accusations.
So frankly, Kenn, your article is indicative of someone who knows his subject very well...but only from his own point of view. I strongly recommend that next time you take the time to objectively look at the issues from your opponents' point of view, and THEN make up your mind.
4 - Glenn Contrarian
Errata:
Apparently, it doesn't matter to you that the GOP is on track to DOUBLE the the total filibusters they held in 2010.
The above SHOULD read:
Apparently, it doesn't matter to you that the GOP is on track to DOUBLE the the total filibusters they held in 2009.
5 - El Bicho
I am outraged by Christine's outrage
6 - jeannie danna
Ken,
You say Obama is taking too much power away from Congress? This is why!
When George Bush started "Homeland Security" I thought we were going to change our national anthem to, Springtime- for-Hitler." Where the fuck was Congress then? and, Where were you, for that matter? Do you have an article scolding Bush for "Doing what is right for all of us, instead of just his base,The-Haves- and-Havemores?"
We are on the road to recovery. A place we would not be at all, if McCain/Palin had won. shudder to think what that would have looked like.
But again, there it is. We won,they won, next time maybe they will win, and then we can try to win again...as long as we only have two-opposing-forces in our political system, everybody loses.
So while Congress and the Supreme Court can roll around in their childish little power-trysts, this country will move forward!
:0 You go! Nanny-state.
7 - jeannie danna
Sorry I spelled your name wrong, Kenn.
8 - jeannie danna
And, I want to second Glenn's comment.
I admit that I don't know half of what he just said, but I like it! especially, when he uses the phrase, "The will of the people." Remember us? 'We The People!"
We needed a third party in this country, over thirty years ago. Hell, we should have had one from the beginning.
It's not going to be that racist-tea- pandering-to-the-wealthy-party.
We are not going backwards!
9 - Kenn Jacobine
Glenn, You are so Machiavellian. Just because one group of degenerates is holding up another group of degenerates means that the president can break the law? If I were president and you wrote a blog that I disagreed with, would it give me the right under our system to imprison you? Yes, Shelby et al are charlatans as well, but whatever happened to the bully pulpit of the presidency. Through public pressure Obama has a lot of leverage to get his appointees confirmed. If that doesn't work then maybe his appointees are losers. But, it is very dangerous to condone the president breaking the law just because the other side are being buttheads.
Also, I am tired of statists saying the filibuster should be done away with. The Founders wanted a limited government that made it hard for laws to be passed, otherwise the politicians would be meddling in every affair of our personal lives - like we have now. We screwed up when the 17th Amendment was passed. The filibuster was developed later - I get that, but it is a means for the Senate to be more deliberative in its process. Besides, if Obama's policies are so popular why Scott Brown's victory, and why are Dorgan and Bayh retiring and what about Harry Reid's troubles, not to mention the president's lousy approval ratings?
10 - Geoff Hasler
Easy to understand why Obama does this as Congress has so many appointments on hold. Dangerous precedent, though. It opens him up to attacks from the extreme Right.
11 - cannonshop
#10 Geoff, it opens him to attacks from the Middle, forget the Right.
I find it amusing still, the behaviours Glenn et-al constantly belaboured over the last ten years or so are now suddenly 'statesmanlike' in his (their)estimation. It reveals the true nature of their previous complaints...
12 - jeannie danna
Ken,
Look at what you wrote:
The Founders wanted a limited government that made it hard for laws to be passed, otherwise the politicians would be meddling in every affair of our personal lives - like we have now.
The founders, even in their limited wisdom, knew that this country would not always be sparsely populated and owned primarily by wealthy-white-landowners.
Thus, we have amendments to that same constitution.
This is the year 2010, and our present landscape and needs do not resemble that, "America of old."
:O Secede with the Tea-Party, the State of Texas, and Sarah Palin. Then, you'll have a leader that watches-cartoons instead of studying history.
13 - jeannie danna
Kenn,
My name is Jeannie Danna, but you can call me, "Obama-Girl", if you wish.
I'm speaking to you and et-al.
14 - cannonshop
To be Clearer, Glenn... ask yourself, "Is there a reason that a DEMOCRAT DOMINATED Senate might be holding up Obama's appointments?" Considering that they expedited his appointment of a Treasury Secretary whom, after being confirmed, turned out to be a Tax cheat, 32(and counting) "Czars" of various sorts, and an Atty. General who's concern is Race far more than either justice or the law...
Yeah, you know, there might be a REASON Obama's appointments are stalled-so far, he's got a cabinet that displays the ethics of Grant's cabinet, coupled with the politics of the worst of modern Illinois (Chicago/Cook County style) and the competence of Buchanan's administration (*and possibly the same urge to treachery.)
As much as it might pain you to read this, your president has done it to himself, and now extends a position that will alienate the section of the middle that Bill Clinton held in coaltion with the Left through the Nineties, and believe it or not, Glenn, the Radical Left Leftovers from the Sixties and their brainwashed offspring aren't enough to redefine the Nation far enough Left for this to work long-term.
15 - jeannie danna
Call names, throw out slogans, and keep demonizing the English language, Cannon...I won't ever give up...
:o I'm the far left now! You betcha. ;]
16 - jeannie danna
Kenn,
Damn, I wish I could stay all day! Where was this article yesterday when I needed it?
:] bye- hopefully I'll be back...you never know, do you?
17 - Kenn Jacobine
Funny, how when you criticize Obama you are instantly labeled a right-winger. I suppose Evan Bayh is a right-winger?
It is also funny that when I do criticize the war criminal Bush not once but twice in an article that is still overlooked (as well as my blogs of the past when I criticized Bush) because poor Barack Obama was also lambasted.
With all due respect, both Republicans and Democrats are responsible for the mess we find ourselves in. I said as much in my last paragraph (also overlooked). You that ignore a good portion of my piece are guilty of the same thing you blame Washington for - playing politics.
18 - Glenn Contrarian
All should bear in mind that (unlike most other BC conservatives) Kenn DID strongly criticize Bush.
That said, Kenn, I asked you how YOU would proceed if you were in Obama's shoes, given the historically-high majority the Democrats enjoyed (and still enjoy to a point), and given the historically-high number of filibusters the Republicans have been using (even on legislation they've supported in the past or even co-sponsored), and given the refusal to allow almost ANY even routine administrative appointments, some for close to a year!
You did not directly reply to my challenge, but just accused me of being 'Machiavellian' as if that answered everything.
You see, Kenn, IMO that's one of the differences I've noticed between conservatives and liberals. Generally speaking, conservatives tend to use more rhetoric with less of an effort towards backing up that rhetoric with hard historical facts or details of exactly what they would do. Liberals, on the other hand, DO tend to use hard historical facts and details of exactly what we would do.
Deeds, not words. By their works shall ye know them. We've seen the results of long-term Republican rule and the failure of Reaganomics...yet conservatives would have us continuing down that very road that got us into the Great Recession.
Answer my challenge, please. If you're going to complain, then at least tell us how you would make it happen given the situation I described above.
19 - Kenn Jacobine
Glenn,
I missed your challenge initially, but thanks for another bite at the apple.
First of all, I am not a conservative. I believe in both freedom economically as well as personally. Thus, I am a libertarian. We probably have more in common than you think.
I can't imagine that a libertarian would ever be elected president, but if I were I would certainly have a clear mandate to govern as one. I really believe the things I write in my blogs and would run on them for president (I did once for PA State Senate). Thus I would not nominate leaders for those Executive departments and agencies that are either unconstitutional or unnecessary. Because my limited amount of nominees would have to be libertarian both Republicans and Democrats would either reject or filibuster them away. Under no circumstances would I violate my oath to the Constitution and make inappropriate recess appointments. I would appeal to the American people to pressure and/or replace their senators who stand in the way of the confirmations.
Obama had a mandate when he was elected. He was popular and had huge majorities in both chambers of Congress. He has squandered it because of his far-left policies - socialized medicine, huge spending, and cap and trade - not to mention all of his czars and leftist advisors. Even moderates in his own party can no longer stomach his policies.
20 - Glenn Contrarian
Kenn -
He has squandered it because of his far-left policies - socialized medicine, huge spending, and cap and trade - not to mention all of his czars and leftist advisors. Even moderates in his own party can no longer stomach his policies.
I disagree. I think he did squander the opportunity by trying too hard to reach bipartisan agreements with a party that had no intention whatsoever of being bipartisan - and their intractability is evinced by their filibustering of legislation that they themselves supported in the past, and by their party-line votes against legislation that they themselves co-sponsored.
But I suspect Obama's making lemonade out of lemons since there's a great many people out there who are seeing through the Republicans' false rhetoric.
And let me define the challenge somewhat - you say that there's a lot of nominations you would not make, but if there are dozens of nominations that you would make, that you strongly feel are necessary, yet the minority party has held up those nominations for several months or even close to a year, what would you do to make those nominations happen when it becomes clear that the minority-party senators have no intention of allowing those nominations to proceed?
21 - Silas Kain
I'd like to make a recess appointment -- fire my member of Congress and replace him. We have no mechanism to declare that we would like to execute a vote of no confidence. We have scheduled elections every two and four years. It's all a cycle -- women who have difficulty being "regular" are jealous of how regular the government cycle continues to be despite being populated by a herd of dried up old men who don't share a live gram of testosterone among them. How about a parliamentary system? Yeah -- that's the ticket.
22 - Baronius
Kenn, the presidency hasn't become imperial, but it is executive. It's got to have latitude to determine how to fulfill his duties. Executive orders aren't (necessarily) a violation of the letter or spirit of the Constitution. Likewise, there's nothing wrong with signing statements which explain the administration's legal interpretation of a law.
I agree that a president should veto a bill that he holds to be unconstitutional. But I don't see how denying the constituionality of an already-existing law is a violation of the Supreme Court's judicial review (if that's the argument you're making).
As for recess appointments, yes, it's a bit of a game, but it's mostly harmless, and the power to appoint acceptable candidates during recesses is one that shouldn't be taken away from a president.
23 - Glenn Contrarian
That's twice in a row that I'm agreeing with everything in a post by Baronius. I think it's time for me to go see the shrink....
24 - roger nowosielski
Are you suggesting, Glenn, that you're suffering from double vision?
25 - Kenn Jacobine
Baronius and Glenn,
Do juries and states have a right to nullify whole or portions of laws passed by Congress? This is what Obama's aide said he will do - enforce only the portions he says are constitutional.