The Amazing Presidential Power-Grab

With little consternation or lasting opposition, the Obama administration has dramatically usurped congressional power at the expense of popular will and the rule of law.  Numerous dastardly bureaucratic coups -- motivated by the president's progressive and political agenda -- have amazingly failed to engender a serious response. 

What began as a trickle of presidential power-grabs has turned into a cascade of executive roguery.  A list of them is worth some review and reflection:

  • In June 2012, President Obama circumvented Congress's refusal to pass the DREAM Act by instituting a portion of it on his own. Through executive order, the administration has directed federal officers to no longer deport large swathes of younger illegal immigrants, with an inclusive net that could impact over a million. Conservative sage Charles Krauthammer summed it up pithily: "This is out-and-out lawlessness. You had a clip of the president himself say[ing] months ago, 'I cannot do this on my own because there are laws on the books.' Well, I have news for the president -- the laws remain on the books. They haven't changed."
  • Earlier this month, the Obama administration quietly stripped away a central component of the 1996 bipartisan welfare reform act -- the lynchpin work requirements -- passed by a Republican Congress and signed into law by President Clinton. The regulations allow states to substitute education programs as "work" for their residents to enjoy welfare benefits. Self-described "neo-liberal" pundit Mickey Kaus reacted to the "surprising (and possibly illegal) attempt to grant waivers of the work requirements" as follows:

A great deal of effort was put into defining what qualified as work, and making sure that work actually meant work and not the various BS activities (including BS training activities) the welfare bureaucracies often preferred to substitute for work[.] ... To the extent the administration's action erodes the actual and perceived toughness of the work requirements, which it does, it sends the opposite and wrong signal.

In effect, the administration is taking the teeth out of the reform.  So long as states believe that new methods might achieve employment goals in the long run, the feds can approve the changes, and those not working can enjoy sustained welfare benefits.  All this without consulting those charged with actually making law.

  • The so-called Affordable Care Act (ACA) is one mammoth legislative concession to executive-branch lawmaking. The Act is hardly a law at all, but rather a series of directives and mandates, providing the secretary of HHS (i.e., the Obama administration) immeasurable power in implementing the Act's policy aims. One example from earlier this year is the HHS religious mandate, requiring employers to include abortion-inducing drugs, sterilization, and contraception in their employee health insurance. The regulation applies to religious institutions like Catholic hospitals, schools, and charities -- regardless of whether these institutions object to such services on moral grounds. Want to find the portion of the 2,700-page bill that deals with this issue? Good luck. It's not there.
  • Less publicized examples are numerous. The Wall Street Journal's Kimberly Strassel, in a recent superb column, outlined a laundry list a few weeks ago:

o   The president opposes a federal law criminalizing medical marijuana.  No problem -- he merely instructed his Justice Department not to prosecute violators. 

o   He disapproves of the federal Defense of Marriage Act.  No need to work with Congress on repealing it -- he merely stopped defending it in court. 

o   With no love for the federal No Child Left Behind Act, he ordered his Education Department to issue waivers "that are patently inconsistent with the statute."

o   Congress falls short of passing cap-and-trade?  The administration had the Environmental Protection Agency enforce something similar though unilateral regulations.

o   Congress demurred in taking up "net neutrality" internet regulations, so the president's Federal Communications Commission did it instead.

This list could go on.

When presidents past overstepped constitutional or statutory boundaries, the Fourth Estate would lecture on "imperial" presidencies.  For President Obama, however, the media's progressive core prompts compliments of bravery and perseverance, while journalistic duty turns a blind eye to procedural lawlessness.  One wonders what their reaction would have been had President George W. Bush and his administration acted similarly.

Politically combatting this lawlessness is difficult, as a public debate about procedural malfeasance invariably morphs into disputes of the substantive policy itself.  Attempts to highlight procedural strong-arming are blurred by political attacks -- "wars" on women, immigrants, the poor, and the like.  It may also be said by political strategists that when one argues about procedure, he has already lost the policy debate.

Political challenges, however, are no excuse for allowing this administration to peel away constitutional checks and balances.  A coordinated effort by conservative and Republican (big "R" and small) causes must be brought to bear to inform the voting public on these knavish executive end-runs.  John Adam famously warned that our Constitution sought "a government of laws and not of men."  Process matters.  Our constitutional framework depends on it.

Kyle Stone is a practicing attorney in Chicago, co-chair of Maverick PAC Chicago, and board member for the Chicago Young Republicans.  He can be reached at