Last week President Obama decided to evade the legislative process by enacting an immigration amnesty plan without the consent of Congress. Regardless of your feelings about the policy itself, the decision was troubling because it violates our nation’s carefully established system of power shared equally among the three branches of government by further consolidating authority within the Executive Branch.
The president claims he was forced to act unilaterally on immigration because Congress did not pass the DREAM Act legislation earlier this session. It’s the political equivalent of an immature kid on the playground—frustrated because his team failed to score a touchdown on the first drive—deciding to take his ball and go home rather than trying again during the next possession.
Obama could have gone back to Congress in January with a fresh immigration bill or worked to elect more members to the House and Senate to help enact the bill that failed earlier this year. Instead he bypassed Congress completely and enacted the core policies embodied in the DREAM Act on his own.
To hell with Congress, the co-equal branches of government, and the legislative process. He wanted what he wanted when he wanted it, regardless of the democratic system. Simply put, George III gave greater consideration to the opinions of the original colonists than Obama has given to the views of Congress. Obama’s bio says he was a constitutional law professor, but could he pass a ninth grade civics class?
Somewhere John Yoo is smiling. The president’s decision to dodge the legislative process is undoubtedly heartwarming for the former Bush administration Justice Department official and innovator of the "unitary executive" theory of governance.
In case you’ve forgotten, then Assistant U.S. Attorney General Yoo authored a highly controversial law journal article in 1996 arguing that the president is unconstrained by any constitutional or institutional limitations. The president, argued Yoo, possesses the broad authority to act as he sees fit to solve national problems, particularly in a state of emergency via the Constitution’s "Commander-in-Chief" clause. As Assistant Attorney General under John Ashcroft, Yoo penned the infamous "torture memo" in 2002 asserting that the president is authorized to order the torture of enemy combatants and send American troops into war without the consent of the Congress.
The unitary executive approach doesn’t just go over the head of Congress; it essentially ignores its existence. While Yoo’s conception of an all-powerful president serving as a one-man government is alarming, it is certainly not a novel idea. Several political scientists have been warning for quite some time about the inordinate amount of authority being stockpiled by the Executive Branch, threatening to uproot our system of balanced federal powers.
First, W.G. Howell’s 2003 book called Power without Persuasion documents the unbalanced growth in Executive Branch strength by assessing the expanding use of presidential directives, signing statements, and executive orders to make policy. The president, says Howell, has enlarged his power base by utterly ignoring Congress while advancing an agenda independently of the constitutionally co-equal Legislative Branch. He cites examples such as FDR’s executive order that caused mass Japanese internment during World War II and Nixon’s directives in the 1970s implementing clean air and water policies without congressional consent.
Second, Arthur M. Schlesinger, Jr. offered the theory of the imperial presidency in 1973, stating that presidents since FDR have had at their disposal a growing White House staff, a powerful Executive Office of the President that escapes most congressional oversight, and a powerful chief of staff appointed without congressional consent who also lacks legislative oversight. This arrangement is dangerous for maintaining the delicate balance between branches as prescribed by the Constitution, says Schlesinger, as it enables the president to set his own agenda and gain an upper-hand in legislative negotiations.
Lastly, Theodore Lowi contends in his 1986 book The Personal President that a phenomenon known as "personal presidency" has engulfed the Executive Branch. Through strategic political rhetoric, campaign-style speeches and public appearances, carefully crafted messages, press conferences, and events like FDR’s fire-side chats, presidents have intentionally and willingly established themselves as a "friend" of the citizen. In turn, the public believes that they can demand and receive whatever they please from the president. Lowi believes this to be a risky proposition as the public expects that the government, vis-à-vis the president, is capable of solving all of their public and private problems.
Unilaterally enacting a major immigration policy change without the consent of Congress is another frightening chapter in the country’s downward spiral into a unitary executive system of governance. John Yoo would be proud. It is also indicative of the broader issues raised by Howell, Schlesinger, and Lowi.
Following Obama’s announcement last week, respected Georgetown law professor Jonathan Turley stated that "In many ways, President Obama has fulfilled the dream of an imperial presidency that Richard Nixon strived for. On everything from (the Defense of Marriage Act) to the gaming laws, this is a president who is now functioning as a super legislator. He is effectively negating parts of the criminal code because he disagrees with them. That does go beyond the pale."
Obama has handed a significant victory to those who seek to obliterate America’s constitutional balance of power among co-equal branches of government by placing legislative and executive power in the hands of the presidency. Across the political spectrum we should all agree that lawmaking by presidential diktat—regardless of whether one agrees or disagrees with the policy in question—is detrimental to our country and poisonous for our politics.
This president promised change but has shown an alarming disrespect for our nation’s institutions and our constitutional system of checks and balances. It’s time for him to go.
Nathan R. Shrader is working towards a PhD in Political Science at Temple University. He holds an MS from Suffolk University and is a Republican City Committeeman in Philadelphia. Reach him at [email protected]