Obama and the Dispensing Power

President Obama’s abuse of his powers to attempt to grant pseudo-legalization to five millions illegal aliens by executive fiat has been widely described as being “unprecedented” in some quarters. This is inaccurate. Others have tried to argue that reasonable precedent can be found in actions of prior presidents, such as Ronald Reagan and George H.W. Bush, who have issued executive orders relating to the implementation of earlier immigration laws. This is also false. It is difficult to find anywhere in the history of the United States a broader assertion of the power of the executive to make law than that asserted by Mr. Obama in this case. That does not mean, however, that this action is wholly without precedent in our collective political history.

The president argues that he must act on this issue because the Congress has not done so. If that is what the president sincerely believes, that would suggest that he fundamentally misunderstands the design of the Constitution of the United States. In order to understand this, we must travel back some distance in time. The American Constitution is fundamentally modelled after the British constitution as it existed in the Eighteenth Century with certain tweaks designed to remedy such defects as the Founders saw in the fabric of their British inheritance. The separation of powers inherent in the Constitution was designed to be a “fail-safe” system. There are two branches of the Congress elected to represent different constituencies, a judicial branch with a power of review, and a separately-elected executive charged with the execution of the laws specifically because the system was designed to prevent someone from doing something unless a very broad consensus already existed for it to occur. The system is supposed to be slow and given to delay because such delay limits the power of the state to act in an arbitrary fashion.

This was also the design of the British system of government in the day of the Founders. Laws could only exist in Britain by the agreement of the Crown, the Lords, and the Commons. This British system existed because the people of Great Britain had, by 1776, learned through hard experience what happens when one portion of the government was allowed to dominate the other. They had seen tyranny emanate from the Crown, as during the “Personal Rule” of Charles I, and they had experienced arbitrary government by the Commons followed by military despotism during the days of the Commonwealth and Cromwell. Therefore, by the time of the American Revolution, there had evolved in Great Britain a system where interest was balanced against interest to protect the liberties of the people. The Founders didn’t revolt against the British system; they rose up because their circumstances meant that they, as citizens of the American colonies, did not enjoy the same liberties as their British cousins did.

It is in the British experience that the best precedent for Mr. Obama’s executive actions may be found. The last Stuart to hold the English throne, James II, was a Catholic ruler of a Protestant nation and he therefore found the various anti-Catholic laws that existed in England in those days to be distasteful and dangerous to his objective of maintaining power (and, possibly, of imposing Catholicism upon the English). Therefore, he used what was known as the “dispensing power” to allow Roman Catholics to serve as officers in his army without taking the oaths required by the laws passed by Parliament. The dispensing power held, in essence, that the Monarch was permitted to free himself or anyone that he chose from the obligations of the law. 

The free people of Britain were not willing to stand for the abuses of the king. They soon rose up and launched a rebellion that resulted in the constructive abdication of James II (the Convention Parliament that assembled in the king’s absence ruled that his act of throwing the Great Seal of the Realm into the Thames constituted his resignation) and installed William and Mary upon the throne in his place. These events, capped by the passage of the Bill of Rights of 1689, have become known to history as the “Glorious Revolution” and with good reason, for they represent the dawn of many of the constitutional liberties that we enjoy today. 

The first declaration of the Convention Parliament contained within the Bill of Rights is, “(t)hat the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal.” 

For three hundred and twenty-five years, this principle has held. No previous American president has ever attempted to claim the power that the English Parliament had forbidden to their kings. Those who view this sweeping assertion of presidential authority by Mr. Obama simply through the prism of politics are missing the point. This is not merely a political outrage -- it is a historic offense against the Constitution and public liberty. It represents a breach not only of political norms, but an attempt by the president to claim powers that have been denied to the executive among the English-speaking peoples since the end of the era of absolute monarchs. 

Adam Yoshida is an author and political commentator.  His most recent book is This Mighty Scourge.