Many members of the GOP missed the bigger significance of last week's Obama health care summit. In a manner unique in American history, a president claimed the authority to chair Congress, dictating items of legislation and belittling the democratic opposition. America separated from that system over two hundred years ago as tea plunged into Boston harbor. That's not the way things are done in America. President Obama must be restrained, or the beleaguered Constitution will be reduced to mere tissue paper. President Obama exceeds his constitutional authority on a near-weekly basis. Just two weeks ago, President Obama made the chilling declaration that if Congress refuses to act, he will simply rule by executive decree. With Rahm Emanuel at the helm, this sort of unconstitutional sentiment should come as no surprise, but it certainly should not be tolerated. President Obama does not embody the will of the people; Congress does.
President Obama is given no authority under Article II of the U.S. Constitution to participate in legislation -- only the power to "take Care that the Laws be faithfully executed." The President holds the power to sign or to veto, and there ends his capacity for legislative input.
The practice of executive fiat, called the "unitary executive" during the Bush years, has grown progressively since FDR, heating up during the Clinton administration. In INS v. Chadha, the SCOTUS ruled that presidents of the United States may bypass Congress. This ruling necessarily ignores the clear and transparent language of Article I of the U.S. Constitution, which declares that "[a]ll legislative power herein granted shall be vested in a Congress." This phrasing doesn't rule out the possibility of delegation, but the provision in question leaves no room for the executive branch as co-legislator. Even so, presidents over the last ten to fifteen years have relied heavily on INS v. Chahda to justify a greater role for the presidency in making public policy, blurring the separation of powers, and in many cases, endangering constitutional liberties. In this line of thought, President Reagan's Attorney General Edwin Meese argued that signing statements or executive orders "provide an opportunity for the chief executive to participate more actively in the creation of legislation than the mere decision to sign or veto bills transmitted to Congress"[i]. President Reagan would issue 250 signing statements, 86 of which raised constitutional or legal objections. President Clinton expanded the use of executive orders and signing statements to affect public policy to an even greater degree than the "conservative" Reagan administration, much to the detriment of the constitutional fabric by which we are governed and the sovereignty of the United States at large. Under the misnomer "Project Podesta" -- a more fitting name would have been "Project Lenin" -- the Clinton team overtly skirted constitutional restrictions on executive power and commenced making laws, confiscating land, banning guns, etc., all with these questionable devices. During his administration, President Clinton issued 381 signing statements, 70 of which raised legal objections. Clinton's then-Assistant Attorney General Walter Dellinger would comment that "there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional"[ii]. The Constitution allows only two possibilities: veto or enactment. The Clinton middle way is nowhere mentioned in the Constitution. This huge assumption of power comes right out of the Marxist-Leninist playbook that views the leader as the embodiment of popular will. This paradigm was closely replicated in the remarks of Clinton spokesman Joe Lockhart:
We have a congressional majority right now that seems intent on thwarting the will of the majority in this country on gun safety, on tobacco, and therefore, the President will use the authority invested in him by the Constitution and the laws of this country to seek alternative solutions.
Use of these "alternative solutions" appears to cross party lines. According to the Congressional Research Service, President George W. Bush issued 152 signing statements, an innocuous-sounding figure, except that of this number, 118 carried some sort of statutory or constitutional objection, as well as over 1,000 objections to distinct provisions of a law. Bush exercised what amounts to a de facto line-item veto, accepting parts of legislation, rejecting other parts entirely, and substituting his "interpretation" -- what really amounts to a consciously altered meaning -- for the original words of the legislation. Rahm Emanuel has attempted to do for President Obama what he did for President Clinton. News has surfaced that due to Congressional paralysis, Emanuel will spearhead a program of executive action to address a host of policy questions to which President Obama has been unable to gain Congressional assent. Executive orders will reportedly be used to implement cap-and-trade legislation held up in the Senate, to enact health care reform, and to address other questions, such as the longstanding ban on gays serving openly in the military. During his State of the Union address, President Obama brazenly declared that he would set up his own budgetary commission despite the refusal of Congress to approve such a venture. Even before Obama's formal announcement of rule by executive fiat, he began nullifying centuries of statute governing the domestic deployment of U.S. troops via executive order, vesting a new, president-appointed council with the authority to declare martial law. Against such brashness, the constitutional separation of powers cannot endure. The self-proclaimed authority of the president might be beneficial in one context and dangerous in another, which is why the accumulation of any powers not specified in the Constitution must be forbidden in all contexts. James Madison, author of much of the Constitution, would agree:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
At the heart of President Obama's approach is an assumption that the success of his policy agenda is the primary responsibility of his office. He is therefore willing to break the law to make his policies a reality, but the framers recognized no such right -- only the responsibility to protect and defend the Constitution. Everything else is tangential.
The only legitimate purpose of government recognized by the framers is adequately expressed in this passage from the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.
Policy is not the object of American government, though sometimes public policy will be consistent with the enumerated responsibilities of one or more branches of government. Once upon a time, it was common for the king or queen of the United Kingdom to sit in parliament and actively prescribe the legislative agenda. Now, the Queen sits in parliament once every year and reads a preapproved script of legislative goals. This system did not suit the United States. America voted with the musket for a servant, not a king. Maybe it's time President Obama is reminded of his place.
[i] Meese, Edwin III., Major policy statements of the attorney general: Edwin Meese III, 1985-1988, Washington, D.C.: Government Printing Office, 1989, 78-79. [ii] Department of Justice, Office of Legal Counsel, "Presidential Authority to Decline to
Execute Unconstitutional Statutes," 18 U.S. Op. Off. Legal Counsel, 199 (1994).