Ours is a nation of laws, not men. As Thomas Paine put, “In America, the law is king.” Hence, the “Take Care Clause” requires that the President “shall take care that the Laws be faithfully executed.” Presidents have attempted to expand the power of the executive branch since the beginning of our country. Presidential authority to execute – or not execute – the law was vigorously debated by the First Congress, and was a key issue of President Andrew Jackson’s war on the Bank of the United States.
In March 2008, then-Senator Barack Obama campaigned on a different kind of presidency. “The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all,” Obama promised. “And that’s what I intend to reverse when I’m president of the United States of America.”
In 2011, after his first mid-term election shellacking when Democrats lost the House, President Obama reversed course. While most presidents have worked to expand executive power in foreign policy, after his first mid-terms, President Obama launched a deliberate, creeping expansion of executive authority in domestic policy. Among other “pen-and-a-phone” actions, President Obama granted No Child Left Behind waivers that were unsupported by federal law, made recess appointments to key positions that were later struck down by the Supreme Court, directed Homeland Security not to enforce immigration laws against students, and unilaterally delayed enforcement of Obamacare’s employer mandate.
Now, with his presidential clock ticking and zero influence in Congress, Obama has accelerated from creeping to galloping toward an imperial presidency. In the weeks since the mid-term trouncing, leaks of President Obama’s purported plan to suspend the nation’s immigration laws for more than 5 million illegal immigrants has dominated Washington. Conservative Charles Krauthammer calls it an impeachable offense, and even the liberal Washington Post has implored the president to reconsider.
Obama has acknowledged that his authority to act is, at best, a legal stretch. In 2013, he conceded it “would be very difficult to defend legally.” When asked about what he could do if Congress refused to act, he explained, “The problem is, is that I’m the president of the United States, I’m not the emperor of the United States, my job is to execute laws that are passed.”
Options to stop Obama’s encroachment are limited.
Impeachment is not realistic. It requires a two-thirds vote of the Senate. Even assuming every Republican would vote for it (unlikely), there aren’t enough Democrats who would cross the aisle. You know what you call a president who survives impeachment? Emboldened. Worse, the impeachment process will suck the air out of Washington, suffocating any positive agenda Republicans could otherwise present.
Litigation is a long-shot. Speaker Boehner is suing President Obama for repeated intrusions into Congressional power. There are some similarities between Boehner’s lawsuit and Marbury v. Madison. But Marbury’s injury was specific to him. Speaker Boehner’s lawsuit relies on congressional standing, which a judge is likely to find insufficient to allow a case to proceed under Article III of the Constitution.
Congress can pressure President Obama to relent by withholding funds but the President’s proposal is to nullify federal law by executive order. There may be some funding associated with inaction, but it won’t be much. Ultimately, however, the decision will be President Obama’s.
Presidents, particularly those in their second terms, should take the long-view. If he continues down this path, President Obama will allow his personal urgency of a short-term policy battle to undermine the checks-and-balances that have helped make ours the greatest nation in history. He may “win” this policy fight, but only temporarily – as he will make it impossible for Congress to pass a bill and his victory will be subject to reversal under the next president. And at what cost? A precedent that would permit the next president to ignore a law President Obama supports. What if the next president decides not to enforce Obamacare’s individual mandate? Or Sarbanes-Oxley? Or the top tax rate?
Elections have consequences. The President has powers that Congress has little ability to stop. With his boots in the stirrups and whip-cocked, only President Obama will determine what happens next. As the only president in modern American history with a professional background in constitutional law, President Obama must realize the precedent he’s contemplating. Mr. President, put the whip down and come off your unitary executive horse. Think like Professor Obama on this one, not the wounded, term-limited, and frustrated politician you’ve become.