UPDATE: Today, before meeting with his Cabinet , Obama explained that he would speak to his administration about “how to use all the tools” at its disposal to promote his agenda. “One of the things that I will be emphasizing in this meeting is the fact that we are not just going to be waiting for legislation in order to make sure that we are providing Americans the kind of help that they need,” he said. “I’ve got a pen, and I’ve got a phone.”
“We can’t wait for Congress to do its job. So where they won’t act, I will. We’re going to look every single day to figure out what we can do without Congress,” President Barack Obama said in, perhaps, one of the most revealing statements about his governing philosophy. The good news is there may be a bit a reprieve in the president’s mission.
Obama has made plenty of comparable threats to bypass the legislative process over the years. As a campaign tool, a president pitting himself against an unpopular “do-nothing” congress is not unique. This is a bit more serious, though. When Obama couldn’t wait for cap and trade, he took control of environmental policy. The president couldn’t wait for immigration reform and effectively legalized Dreamers. Even when congress does pass his legislation, Obama, as we’ve recently witnessed with Obamacare, feels free to implement law in any politically expedient manner he pleases. And when the president couldn’t wait and made three “recess appointments” to the National Labor Relations Board, in part to stop Boeing from opening a union-free plant in South Carolina, even though the Senate wasn’t technically in recess, he broke a century-long precedent and probably the law.
Some argue the latter is the most egregious executive abuse, because it undermines the institution expressly tasked to check executive power. And, apparently, the administration had a tough time defending itself on the recess appointment issue in front of the Supreme Court this week – which is fairly surprising considering the sterling track record executive power has in the court. We can leave the legal particulars to the experts, but within this post covering the oral arguments on SCOTUSblog is tucked a remarkable paragraph (via Charles Cooke):
The lengthy argument, taken as a whole, seemed to go considerably better for those opponents than for the defender of presidential authority, U.S. Solicitor General Donald B. Verrilli, Jr. The Solicitor General made little headway in arguing that the Constitution meant the president to have significant power to make temporary appointments, and that deferring to the Senate would, in effect, destroy that power. He seemed to startle even some of the more liberal judges when he said that, if it was a contest between historical practice and the words of the Constitution, practice should count the most.
Most of us haven’t witnessed that kind overt deference to executive power since Solicitor General Elena Kagan implied (maybe, suggested, is more accurate) that the Obama Administration have the constitutional authority to ban and censor political “pamphlets,” books and other speech.
It somewhat jarring – and maybe I’m just being naïve – to hear that a government lawyer argued that “historical practice” should take precedent over the Constitution. Even if we accepted this, ironically enough it was Obama who blew up tradition by trying to define what a Senate “recess” should be rather than allowing the Senate to do it (Harry Reid instituted pro forma recesses to slow George Bush’s appointments, in the first place).
No matter, in Washington liberals have a prefabricated defense any time President Obama steps over the line. The man is faced with unique challenge: the GOP. As The New York Times editorial page editor Andrew Rosenthal once summed it up writing in defense of Obama’s aggressive use of executive orders: “Context and intent make all the difference.” Government by executive order, he goes on to argue, “is not sustainable in the long-term. Nor is it desirable, whether you agree or disagree with those orders. But in this particular case, there may be no alternative.”
“In this particular case” is the favored argument for ignoring tradition and the law. Neither party is innocent. I noticed John Yoo making a similar rationalization in a NRO piece criticizing Obama for executive overreach (snicker if you must) on NLRB appointments: “Presidents, I think, should make broader claims of presidential power when the stakes for the nation and the office are higher than whether Boeing should be allowed to open a plant in South Carolina,” he wrote.
If only Obama had a better imagination and loftier goals! Then, misusing executive power might be worth arguing for. For Yoo, The War on Terror trumps any concern about abuse. For Rosenthal, and many liberals, it’s Republican obstinacy to Obama’s agenda that is an unprecedented roadblock that excuses overreach.
None of this is to say the Senate is doing its job. The non-recess recess appointments – in conjunction with setting off the nuclear option – were meant to bestow Obama free rein in the nominating and confirmation process. Before Harry Reid blew up the filibuster (Obama, incidentally, does not support “historical practice” on the filibuster), Senator Jeff Merkley of Oregon, offered a justification for throwing away a vital check on power because the GOP was “going to disable the executive branch if a minority of the Senate disagrees with or dislikes the president the people elect.” His justification is baloney. But, even if it weren’t, the Senate is charged with checking executive power, not babysitting a favored president.
Republicans can argue all day long that circumstances will one day be flipped, and all the excesses of power will one day come back and haunt Democrats. Problem is: 1: No one ever believes they’ll be out of power, and they act accordingly. Considering the resourcefulness of today’s Republican Party, Democrats might even be right. 2. If they must, Democrats will argue once again that “context and intent make all the difference.” This time, in reverse. Most voters aren’t terribly concerned with process. 3: Guess what? Knowing that either party, if given the chance, will appropriate as much power as they can should be no great comfort to the American people.
So, if you care, all you have are the courts. And though they haven’t worked out very well either, a victory against Obama’s overreach in the recess case would certainly be a welcome change.
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