Washington Times: Dan Pfeiffer: 'President Obama is ready to use every executive action available'
"White House senior adviser Dan Pfeiffer sent an e-mail early Tuesday to preview President Obama's plan to use his executive power in ways Americans have never seen before. "President Obama has a resolution for 2014: That this will be a year of action," Pfeiffer said in the e-mail, pointing out that Obama would no longer be waiting around for Congress to get things done. "Instead, the president will use his executive authority, both his pen and his phone, to work with anyone to get things done..."CBS: Obama On Executive Actions: ‘I’ve Got A Pen And I’ve Got A Phone’
"Calling for “all hands on deck” to assist the economy, President Barack Obama is urging his Cabinet to identify ways to keep his administration relevant ...“We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone,” Obama said Tuesday as he convened his first Cabinet meeting of the year. Obama continued: ”And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward..."The President summoned the Obamite Minions to rally around this initiative to bypass all that messy congressional legislative unpleasantness in the service of his agenda:
"2014 will be a year of action for the American people — and President Obama is ready to use every executive action available to him to make sure of it... Tell the President you're IN for 2014..."
The Dividist filled out the form and told the President he is IN, but he really isn't. The Dividist is actually much more IN with checks, balance and separation of powers between the executive and legislative branch as intended by the founders and codified in our Constitution.
Is it too much to ask for a President who takes the Constitution seriously and recognizes that it is a problem to bring more and more power into the executive branch and not go through Congress at all? Politifact checks out 2008 candidate Obama's views on executive orders:
"I take the Constitution very seriously," he said. "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. And that’s what I intend to reverse when I’m president of the United States of America."
Too bad that Obama didn't get elected president.Obama also targeted the Bush administration’s use of executive orders to conduct surveillance programs, saying "most of the problems that we have had in civil liberties were not done through the Patriot Act, they were done through executive order by George W. Bush. And that’s why the first thing I will do when I am president is to call in my attorney general and have he or she review every executive order to determine which of those have undermined civil liberties, which are unconstitutional, and I will reverse them with the stroke of a pen."
In a divided government, a president who wants to "get things done" has two choices.
- The President can stand up to his own party, compromise his party's agenda by explicitly including and incorporating the agenda of the party controlling Congress into legislation as did Presidents Reagan and Clinton - or -
- The President can attempt to ignore and bypass Congress and implement his agenda by executive fiat.
In addition, ruling the country by executive order runs counter to the spirit, intent and letter of the Constitution, if you care about that sort of thing. But reigning in presidential overreach is not without its challenges. You have to get that third branch involved.
Politico: "Can Obama’s Legal End-Run Around Congress Be Stopped?"
The Politico opinion piece was co-written by David Rivkin who served in the Reagan and Bush41 administrations, so his opinion may be easy to ignore for those of a lefty persuasion. Less easy to dismiss are the views of constitutional scholar Jonathon Turley:"In his signature legislative achievement alone, the Affordable Care Act, the president has unilaterally amended the law multiple times, including delaying the employer mandate and caps on out-of-pocket expenses, waiving the individual mandate for certain people, extending tax credits to individuals who purchase insurance through the federal health insurance exchange and ignoring a statutory requirement that Congress and their staff participate in the exchanges. But the president’s audacity doesn’t stop with Obamacare. He has also suspended immigration law, refusing to deport certain young illegal aliens—a major reform that Congress has refused to enact. Similarly, with the stroke of a magisterial pen, he has gutted large swaths of federal law that enjoy bipartisan support, including the Clinton-era welfare reform work requirement, the Bush-era No Child Left Behind law and the classification of marijuana as an illegal controlled substance. So much for the separation of powers...
This is not something the framers of the Constitution would have sanctioned. As the court observed in Clinton, the president does not have “unilateral power to change the text of duly enacted statutes.” That is an important constitutional rule that the current president apparently thinks he can ignore, but the courts must ultimately be willing to enforce."
"Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, testified before the House Committee on the Judiciary in December. While Turley said he supported many of the president’s policies, he said he could not subscribe to Obama’s claims of executive power to achieve those ends. "Despite the fact that I once voted for President Obama, personal admiration is no substitute for the constitutional principles at stake in this controversy,” Turley said in his written testimony. “When a president claims the inherent power of both legislation and enforcement, he becomes a virtual government unto himself. He is not simply posing a danger to the constitutional system; he becomes the very danger that the Constitution was designed to avoid."Turley was a frequent guest across the spectrum of left to far left MSNBC shows during the Bush administration. Then he was very critical of the Bush/Cheney Unitary Executive and war power claims. Since he became a vocal critical of the current president's overreach, MSNBC apparently ceased to value his opinion.
However, for anyone who gives a damn about our Constitution, Turley's perspective is worth the time and effort. His blog is a good place to start. In particular this recent post "Supreme Court Takes Up Challenge To Obama’s Appointment Authority":
"In my view, this is not a close question and that the President has, again, disregarded the purpose and language of the Constitution to deal with a political impasse in Congress. Now that the Democrats have curtailed the use of the filibuster power, a negative ruling may trigger a new round of such changes. That is a political decision. However, this constitutional dispute raises an important question of the limits on executive power in a system increasingly dominated by the Chief Executive. I believe that the Democrats will soon loathe the day that they assisted Obama in this expansion of power when another person sits in the White House."Turley's December testimony before the House Judiciary Committee is an advanced education on our "separation of powers within the tripartite system" and also a must read:
"President Obama has invoked a far broader authority to tailor laws based on his judgment and discretion. This may be done ostensibly to “improve” the law as with the one-year waiver for individual policies or to mitigate the hardship of a law as with the immigration law. These happen to be areas of great political division in the country as well as substantial opposition to the President’s policies in Congress. Many applauded the President’s transcending politics by ordering such unilateral action without considering the implications of such inherent authority for the system as a whole. Once again, it is important to divorce the subject of such legislation or the identity of the president from the constitutional analysis. The circumvention of the legislative process not only undermines the authority of this branch but destabilizes the tripartite system as a whole. If President Obama can achieve the same result of legislation by executive fiat, future presidents could do the same in negating environmental or discrimination or consumer protection laws. Such practices further invest the Administrative State with a degree of insularity and independence that poses an obvious danger to liberty interests protected by divided government. This danger is made all the more menacing by the clear assumption by the Executive Branch that artificially narrow standing rules will insulate the orders from judicial scrutiny and relief. With Congress so marginalized and courts so passive, the Fourth Branch threatens to become a government unto itself for all practical purposes."Elections have consequences, and the main message of the last two (and probably three counting 2014 midterms) is that the American electorate do not want President Obama to have the power to unilaterally impose his partisan agenda nor arbitrarily "tailor laws based on his judgment and discretion".
One thing we've learned over the last dozen years is that the protections afforded by the tripartite checks and balances in our constitutional framework are undermined when one party controls both the executive and legislative branch. We saw it with four years of Republican one party rule under Bush and we saw it with two years of Democratic one party rule under Obama. Too many of our congressional representatives are willing to elevate party loyalty over constitutional responsibility and institutional respect for the legislative branch. Republicans in Congress only behave like responsible Republicans when there is a Democrat in the White House (see deficit and debt under Bush). Democrats in Congress only behave like responsible Democrats when there is a Republican in the White House (see civil liberties and war powers under Obama). When we have one party rule, the legislative branch abrogates their constitutional responsibility to the executive branch. It's just what happens. It's the reason we cannot allow one party rule in this country for the foreseeable future.
I'll conclude by following the lead of Jonathon Turley and quote from the primary architect of our Constitution - Jame Madison in Federalist #51. Here he explains how he expects our separate and equal branches of government to act in their own interest to restrain - for example - encroachment of legislative branch constitutional authority by the executive branch:
“But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. ”
The Constitution is clear. Article 1:
“All legislative powers herein granted shall be vested in a Congress of the United States.”
All means all.