Let’s imagine the following situation:
In 2012, Mitt Romney wins the election. He tries to repeal Obamacare but the Democratic Senate won’t even take it up. He then tries to pass a bill reforming the law, but the Senate rejects him again. He then proceeds to, by executive order:
Then imagine he did other things like use waivers to cancel out parts of Race to the Top, tell the DOJ to not enforce laws he disagreed with, made wholesale changes to immigration, told the EPA to ignore greenhouse gas emissions.
What do you think the Democratic response would be? I guarantee you it would be a lot more vocal than it has been as Barack Obama has done all this and more.
Recently, a bizarre scene unfolded on the floor of the House of Representatives that would have shocked the framers of the Constitution. In his State of the Union address, President Obama announced that he had decided to go it alone in areas where Congress refused to act to his satisfaction. In a system of shared powers, one would expect an outcry or at least stony silence when a president promised to circumvent the legislative branch. Instead, many senators and representatives erupted in rapturous applause; they seemed delighted at the notion of a president assuming unprecedented and unchecked powers at their expense.
Last week, Obama underlined what this means for our system: The administration unilaterally increased the transition time for individuals to obtain the level of insurance mandated by the Affordable Care Act. There is no statutory authority for the change — simply the raw assertion of executive power.
The United States is at a constitutional tipping point: The rise of an uber presidency unchecked by the other two branches.
This massive shift of authority threatens the stability and functionality of our tripartite system of checks and balances. To be sure, it did not begin with the Obama administration. The trend has existed for decades, and President George W. Bush showed equal contempt for the separation of powers. However, it has accelerated at an alarming rate under Obama. Of perhaps greater concern is the fact that the other two branches appear passive, if not inert, in the face of expanding executive power.
James Madison fashioned a government of three bodies locked in a synchronous orbit by their countervailing powers. The system of separation of powers was not created to protect the authority of each branch for its own sake. Rather, it is the primary protection of individual rights because it prevents the concentration of power in any one branch. In this sense, Obama is not simply posing a danger to the constitutional system; he has become the very danger that separation of powers was designed to avoid.
That’s Jonathan Turley, by the way, who is pretty liberal and agrees with a lot of the President’s policies. But he see what so many people don’t: the means matters. Even if you think everything Obama is doing is wise and noble, giving the President this kind of unfettered authority is dangerous to our liberty and to the Republic.
(Defenders of the President like to point out that he has signed fewer executive orders than his predecessors and is on pace to pass the fewest per day since Grover Cleveland. This analysis is a bit problematic since Obama had a supermajority Congress for two years and didn’t need to rule by executive order. It’s also not clear to me that all executive orders are equal. One rewriting a healthcare law is obviously more extensive than one declaring National Turnip Day or putting in place a law that Congress will soon pass. Finally, much of what he is doing is not be executive order, but by other means. Congress left large parts of the Dodd-Frank and PPACA bills open to the executive’s decisions. So it’s a fair point, but one that needs to be unpacked a bit more since the numbers are not everything.)
Look, I’m not naive. If Romney were President and acting this way, the Democrats would be screaming but I’m sure many Republicans and conservatives would be singing his praises, saying it doesn’t matter how Obamacare is stopped as long as it is stopped. But one side’s partisan bullshit does not justify the others’. Barack Obama is President and he has been given and is taking enormous amounts of power generally reserved for the legislature.
This is something that we should all be worried about.