Obama Has Become A Virtual Government Unto Himself

Jonathan Turley, Shapiro Professor of Pubic Interest Law at George Washington University, on “The President’s Constitutional Duty to Faithfully Execute the Laws”   You can read his statements in full at this link.

We have long benefited from a system designed to channel and transform factional interests in the political system.  When any branch encroaches upon the authority of another, it not only introduces instability into the system but leaves political issues raw and unresolved.    Each branch is given the tools to defend itself and the Framers assumed that they would have the ambition and institutional self-interest to use them. That assumption is now being put to the test as many members remain silent in the face of open executive encroachment by the Executive Branch.

There is no question that the President as Chief Executive is allowed to set priorities of the administration and to determine the best way to enforce the law. People of good faith can clearly disagree on where the line is drawn over the failure to fully enforce federal laws.  There is ample room given to a president in setting priorities in the enforcement of laws.  A president is not required to enforce all laws equally or dedicate the same resources to every federal program.

President Barack Obama has crossed the constitutional line between discretionary enforcement and defiance of federal law.  Congress is given the defining function of creating and amending federal law. This is more than a turf fight between politicians. The division of governmental powers is designed to protect liberty by preventing the abusive concentration of power.  All citizens –Democratic or Republican or Independent – should consider the inherent danger presented by a President who can unilaterally suspend laws as a matter of presidential license.

The current claims of executive power will outlast this president and members must consider the implications of the precedent that they are now creating through inaction and silence.    The separation of powers is the very foundation for our system; the original covenant reached by the Founding Generation and passed on to successive generations. It is that system that produces laws that can be truly said to represent the wishes of the majority of Americans. It is also the very thing that gives a president the authority to govern in the name of all Americans.

Despite the fact that I once voted for President Obama, personal admiration is no substitute for the constitutional principles at stake in this controversy. 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.

The Framers created a Chief Executive with a relatively short term of four years and clearly defined powers to fit within this system of shared government.  Despite the recent emergence of an uber-presidency of increasingly unchecked powers, the Framers were clear that they saw such concentration of power to be a danger to liberty. Indeed, the separation of powers is first and foremost a protection of liberty from the dangers inherent in the aggregation or aggrandizement of power.

While the line between legislation and enforcement can become blurred, this view is generally reflective of the functions defined in Article I and Article II. “The Take Care Clause” is one of the most direct articulations of this division. The Clause states “[The Presient] shall take Care that the Laws be faithfully executed. . .”   U.S. Const. art. II, § 3, cl. 4.  

It is one of the clearest and most important mandates in the Constitution. The Framers not only draw the distinction between making and enforcing laws, but, with the enforcement of the law, the Framers stressed that the execution of the laws created by Congress must be faithfully administered. The language combines a mandate of the execution of laws with the qualifying obligation of their faithful execution.

In order to assume office, a president must “solemnly swear (or affirm) that [he] will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” U.S. CONST. art. II, §1, cl. 7. The “Take Care Clause” appears later in Section 3. This section happens to refer to the legislative function of Congress in stating that “from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient.”

Notably, the section affirms the right of a President to ask Congress for legislative action that he deems to be necessary. The clause then affirms the obligation of the President to faithfully execute those laws created by Congress.  It is equally significant that the clause following the obligation to faithfully execute the laws is the clause allowing for the impeachment and removal of presidents.

The import of these clauses is that the President can seek legislative changes and even call Congress into session, but it remains the prerogative of Congress to decide what laws will be enacted (subject to presidential signature or veto override).

The most obvious meaning of faithful execution is that the President must apply the laws equally and without favoritism.  Favoritism is clearly shown in the failure to enforce the laws against friends or political cronies. However, it can also apply more widely to favored groups or political allies. Merriam-Webster defines “faithful” as “having or showing true and constant support or loyalty.” In this controversy, this true and constant support is to the laws themselves. It is worth noting that this is not loyalty tied to the “law” in general – possibly inviting a more nuanced interpretive response to what specific laws serve or disserve the law in general. The use of the plural form encompasses the laws referenced in Article I as the product of Congress. It is those laws that the President is bound to execute faithfully under Article II.

The current controversy over the nonenforcement of federal law transcends the insular issues of particular statutes or regulations. The American governmental system is being fundamentally transformed into something vastly different from the intentions of the Framers or, for that matter, the assumptions underlying the constitutional structure.   As I recently discussed in print, we are shifting from a tripartite to a quadripartite system in this age of regulation.

The Administrative State that is credited with so many advances in public welfare has also served to shift the center of gravity in our system to a fourth branch of federal agencies. As a result, our carefully constructed system of checks and balances is being negated by the rise of the sprawling departments and agencies that govern with increasing autonomy and decreasing transparency. At the same time, we have seen a rapid growth of executive power, particularly since 9-11, where the President is asserting largely unchecked authority in many areas.

From Internet gambling to educational waivers to immigration deportations to health care decisions, the Obama Administration has been unilaterally ordering major changes in federal law with the notable exclusion of Congress. Many of these changes have been defended as discretionary acts or mere interpretations of existing law. However, they fit an undeniable pattern of circumventing Congress in the creation of new major standards, exceptions, or outright nullifications. What is most striking about these areas is that they are precisely the type of controversial questions designed for the open and deliberative legislative process.

For decades  Congress has allowed its core authority to drain into a fourth branch of federal agencies with increasing insularity and independence.   It has left Congress intact but inconsequential in some disputes.

If this trend continues unabated, Congress will be left like some Maginot Line on the constitutional landscape – a sad relic of a once tripartite system of equal branches.