The executive “nuclear option” and missing the point of Watergate

posted at 12:01 pm on August 7, 2014 by Ed Morrissey

The two concepts in the headline may sound disconnected, but they aren’t — and the fact that the connection may not be readily apparent speaks to the lessons unlearned from one of America’s most potent political crises. Ron Fournier sympathizes with the difficulties Barack Obama faces on immigration policy, and even with Obama’s policy goals. However, Fournier warns that the ends do not justify the means of trampling over the separation of powers and the rule of law:

Would it be wrong to end-run Congress? Another way to put it might be, “Would more polarization in Washington and throughout the country be wrong?” How about exponentially more polarization, gridlock, and incivility? If the president goes too far, he owns that disaster. …

Regardless of the justification, acting alone denies Obama a full view of the problem and, with no marriage of ideas, he almost certainly exacerbates the “dangerous impasse” that Brownstein labeled a civil war.

New York Times columnist Ross Douthat argues that this isn’t merely a case of a president responding to a do-nothing Congress. “It’s limited caesarism as a calculated strategy, intended to both divide the opposition and lay the groundwork for more aggressive unilateralism down the road.” If you don’t buy any other argument, consider this one: Endowing the presidency with extraordinary power would be an extremely short-sighted and selfish move.

Indeed — and it’s not as if we don’t already know the dangers of that. By an interesting coincidence, Saturday will be the 40th anniversary of Richard Nixon’s resignation, which he tendered when it became obvious that he would be impeached for his abuses of power. In my column for The Fiscal Times, I argue that the real lesson from the scandal was the reminder of the value of limitation on executive power and the rule of law. The rise of “caesarism,” which I also quote from Douthat, shows that we have not learned that lesson at all and still love executive power …. when exercised on behalf of our own hobby horses:

It took both of the other branches, and more than two years of political strife in part during an unpopular war, to bring a rogue President to heel and reinforce the rule of law. If any lesson should have been learned from this, the value and necessity of restricting executive authority and enforcing constitutional restraints should have been at the top of the list. These days, though, we seem to cheer rogue executives for defying those restrictions as an antidote for political stalemate rather than recognize the danger of unchecked power. 

Consider the current debate over unilateral executive action on immigration, tax law, and other issues. Obama supporters argue that the current state of politics on Capitol Hill leaves Barack Obama little choice but to start issuing orders for widespread deferrals on enforcement of immigration law. Others don’t see it that way.

The New York Times’ Ross Douthat called it “Caesarism,” but most call it an abuse of presidential authority. In our constitutional system, Congress passes laws and the executive branch enforces them.  Even in agency law, where those powers are shared to a certain degree, the executive cannot exceed the grant of authority from Congress, as the Supreme Court just reminded the EPA in June. A stalemated Congress “doesn’t grant the President license to tear up the Constitution,” The Washington Post editorial board warned this week.

Taxes are another area in which Obama supporters are urging “Caesarism,” and sometimes worse. The byzantine and burdensome US corporate tax system has prompted a wave of “inversions,” where corporations relocate overseas in acquisitions and mergers to avoid paying taxes in America. Obama began warning that this violated his sense of “economic patriotism,” saying, “I don’t care if it’s legal” – which is exactly what the executive in the constitutional model should care about.

Instead, to much cheering, the administration has begun mulling changes to tax laws they can impose unilaterally to punish corporations for acting in a legal manner in reaction to legitimate cost concerns. What happened to taxation with representation?

Our political system is steadily moving in the direction of strongman rule, rather than the compromise model that constitutional governance and the rule of law requires. We had better all stop cheering that when our own party controls the executive and start demanding adherence to the constitutional model of separate and co-equal branches. Otherwise, we ran Nixon out of office for no good reason at all, if the ends justify the means for the President. “I don’t care if it’s legal” is just the flip side of “If the President does it, it’s not illegal.”

Update: Fred Bauer slammed Obama for campaigning against the supposed abuses of his predecessor while attempting on every front to expand his own executive authority:

In a 2006 report on the use of signing statements in the Bush administration, a committee appointed by the American Bar Association found that “executive power as conceived in Great Britain and America excluded a power to dispense with or suspend execution of the laws for any reason.” This report also noted that King James II was rebuked by the English Bill of Rights in 1689 for “assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament.”

At least two points might be gleaned from this report. The first is that, by and large, the Founders drew from a broader tradition in which the executive was not the legislator of last resort, empowered to act where the legislature had refused to and to overrule existing laws at a whim. Instead, each of the three institutionalized branches of the federal government (the presidency, Congress, and the judiciary) have certain, limited responsibilities and powers. Indeed, viewing the executive branch as the legislator of last resort turns the legacy of the Founders on its head: By instituting a multi-step process of legislation (through having a bicameral legislature and giving the executive the authority to veto laws), the Founders made it difficult to pass new laws. This difficulty has often encouraged consensus in the passing of laws and open debate in the examination of them. The difficulty of passing laws is woven into the fabric of the federal government, and so, if we gave the president the legislative authority to act on all issues where Congress has not done so, we would risk supplanting the traditional notion of the balanced republic with an executive-driven state in which Congress is a superfluous organ capable of dispensing political patronage and issuing press releases but not actually governing.

The second point is that, during the Bush presidency, Democratic politicians and others on the Left were aware of (or at least publicly professed a belief in) the limits of executive power. One of the members of the ABA task force behind the 2006 report was Harold Koh, who served in the Obama administration from 2009 to 2013. Many Democrats (and not only Democrats) complained about George W. Bush’s use of executive authority, criticizing his appending of signing statements to bills he signed into law and his use of executive orders. In remarks at the Georgetown University Law Center at the end of 2006, the incoming chairman of the Senate Judiciary Committee, Patrick Leahy (D., Vt.) attacked the Bush administration for exhibiting a “corrosive unilateralism” in its dealings with Congress.

One need not agree with the particular judgments of various prominent Democrats vis-à-vis the Bush administration in order to find merit in some of the general principles to which they appealed. For instance, in remarks on the Senate floor in September 2008, Leahy’s fellow Vermonter Senator Bernie Sanders (I.) assailed the presidential psychology that went “I don’t have to worry about separation of powers. I don’t have to worry about the laws of the land. I don’t have to worry about the Constitution. I am the President. In my judgment, I can do what I want.” Instead, Sanders asserted that there were limits on executive authority — that the president could not write legislation for himself. In remarks about Independence Day in 2008, West Virginia senator Robert C. Byrd argued that the Founders “design[ed] a government that limits the power of the executive in order to prevent tyranny by one man.” Senator Russ Feingold of Wisconsin spoke many times about the need to protect congressional territory from encroachment by the executive. While the president does have considerable powers (especially in his capacity as commander-in-chief), there are limits to these powers.

Throughout the Bush administration, Democrats argued that the president did not have the authority to rewrite or dispense with the laws. These arguments provide a backdrop for the debates taking place in the inner circles of the Obama administration, far from the light of day, about what potential executive orders to issue.

Be sure to read it all.


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Go, obama, go!!!

Nov. s/b lots of fun, if only the Rs would deserve to lead.

Schadenfreude on August 7, 2014 at 12:03 PM

Ron Fournier has it right, from the Left.

Schadenfreude on August 7, 2014 at 12:05 PM

Rs, you dummies, NOT ONE Latino voter will vote for you, with or without obama’s pen.

YOU are all pawns, along with the other legal minorities of the USA.

Wake up already.

Both parties use and abuse you.

Pitchfork them all, politically.

The Left/RINO right are for slave labor, just without the chains, and for child abuse.

Blacks, other legal minorities, white/blue color workers without chance of jobs in the USA, and ALL taxpayers, vote against your masters and exploiters in DC..

You’re being snookered, all of you.

Wake up already!!!

Schadenfreude on August 7, 2014 at 12:07 PM

Nixon was an old white guy. This article is racist.

faraway on August 7, 2014 at 12:09 PM

OT, but you don’t have to pay the obama’care’ penalty. You’d be a fool to pay, or to even sign up for it.

Faux just reported how you can be illegal and cool on not following the mandate…they didn’t say it like this but here it goes.

Of the 30 million, who’re actually supposed to pay penalties for not having obama’care’, only about 4 million are expected to, at max. It’s an ‘honor’ system and if you had an aunt Zeituni die, no matter your relationship with her, you qualify for ‘hardship’ exemptions. There are myriad of ‘hardship’ exemptions and you don’t have to supply any documentation for your claim.

Oaf was against mandates when he ran against Hillary, just a reminder.

Schadenfreude on August 7, 2014 at 12:09 PM

Imagine that your legacy is:

Worse than Nixon

Worse than Carter

Schadenfreude on August 7, 2014 at 12:13 PM

The lessons the left learned from Nixon is that if the eunuchs in the media didn’t care and the party doesn’t care then corruption will go unpunished.

gwelf on August 7, 2014 at 12:13 PM

Worse than “chimpey”. The latter sat there, enabling the country of Ebola, with zero honor. Oaf bashed/blamed him for years, and the moron shows up to give the oaf and his oafette credence. One can’t make this up in the best/worst of fiction.

Schadenfreude on August 7, 2014 at 12:14 PM

Our political system is steadily moving in the direction of strongman rule, rather than the compromise model that constitutional governance and the rule of law requires. We had better all stop cheering that when our own party controls the executive and start demanding adherence to the constitutional model of separate and co-equal branches.

A version of this is being played out within the GOP. Our political system is built on the idea that parties stand for principle and the idea that political parties can compromise on issues to protect underlying principle. I don’t see a whole lot of hand wringing at HA when we see the establishment GOP going out of their way to silence or beat down anybody who dares question the “leadership” and their pro-amnesty, pro-gay marriage, anti-gun messages. The whole party is built on the idea of protecting John effing Boehener’s job.

Happy Nomad on August 7, 2014 at 12:15 PM

Country s/b like this ‘Country’, because Pelosi and Biden think that Africa is a “country”, no kidding.

Imagine if a R would have said that. As is, crickets.

Schadenfreude on August 7, 2014 at 12:15 PM

The lessons the left learned from Nixon is that if the eunuchs in the media didn’t care and the party doesn’t care then corruption will go unpunished.

gwelf on August 7, 2014 at 12:13 PM

Unfortunately for us, and our nation, they learned those lessons from Nixon and Watergate quite well.

Fast & Furious
IRS
VA
Obamacare

Each of these alone would have brought down a GOP President…if the corrupt media decided to report them honestly.

Athos on August 7, 2014 at 12:17 PM

The worm turns…

vnvet on August 7, 2014 at 12:19 PM

Poll: Majority Of Americans Say Illegal Immigrants “Threaten Our Way Of Life”…

A majority of people in the United States say undocumented immigrants threaten their way of life and even the economy, according to a Reuters/Ipsos poll released Thursday.

Seventy percent said they believe these illegal immigrants threaten U.S. customs and beliefs. Eighty-six percent of Republicans hold that belief.

Nearly two-thirds said illegal immigrants are a burden on the nation’s economy, the poll found.

The survey found 45 percent said the number of immigrants entering the country legally should be reduced while 17 percent said more should be allowed to come. Thirty-eight percent said the current flow of legal immigration should remain the same.

More people in New England oppose illegal immigration compared to the rest of the country, the poll said. Nearly 80 percent of people in that region said undocumented immigrants threaten U.S. beliefs and customs.

Wait, what??? I thought the South was supposed to be the racist, bigoted, xenophobic region!

Resist We Much on August 7, 2014 at 12:25 PM

We’re well down the path of becoming just like every other banana republic, where the only way anything gets done in government is handing complete control over to the same set of jackasses. And your only hope is that set is wearing your brand.

SteveInRTP on August 7, 2014 at 12:25 PM

Worth listening to

Schadenfreude on August 7, 2014 at 12:26 PM

More people in New England oppose illegal immigration compared to the rest of the country, the poll said. Nearly 80 percent of people in that region said undocumented immigrants threaten U.S. beliefs and customs.

God-damned reporters, they are not “immigrants”.

They are illegal aliens, usurpers of the Land of Laws.

Schadenfreude on August 7, 2014 at 12:28 PM

The world sure respects the US more, all due to obama.

Schadenfreude on August 7, 2014 at 12:20 PM

He didn’t get the nickname “Bathhouse Barry” for nothing…

PatriotRider on August 7, 2014 at 12:32 PM

His own base is going, going, gone…

Schadenfreude on August 7, 2014 at 12:35 PM

We had better all stop cheering that when our own party controls the executive and start demanding adherence to the constitutional model of separate and co-equal branches.

This is the problem in a nutshell. The Republicans “start demanding adherence to the constitutional model” only “when our party controls the executive”. When Democrats are in charge, the establishment wants them to ratchet the country to the left, but not get blamed for it.

Fenris on August 7, 2014 at 12:39 PM

How do you like this IRS action? The executive branch is dismantling the rule of law, this time through Treasury.
http://dailycaller.com/2014/08/06/irs-abolishes-mandatory-expiration-dates-for-illegal-immigrants-taxpayer-status/#!

onlineanalyst on August 7, 2014 at 12:43 PM

It took both of the other branches,

Ed, not to be pedantic but it took all three branches to finally rein in Nixon.

After all, it was the FBI that really exposed the attempted coverup, e.g., the hush money, et cetera. The FBI with Sirica providing the “muscle” by threatening long prison terms.

That’s why, for example, we hear Nixon on the “smoking gun” tape telling Haldeman to have the CIA order the FBI to stop their investigation into the break-in. And this was the second time Nixon tried this approach. He first tried to order DCIA Richard Helms to have the FBI stop the investigation. Helms refused.

Then in the “smoking gun” tape Nixon ordered Haldeman to tell the great American Gen. Vernon Walters, the Deputy CIA director, to do the same thing. Walters too refused to do so.

SteveMG on August 7, 2014 at 12:44 PM

the constitutional model of separate and co-equal branches

Many believe that our Founders gained the inspiration for three branches from this Bible verse:

Isaiah 33:22
“(For the LORD is our Judge, The LORD is our Lawgiver, The LORD is our King; He will save us);”

Judicial, Legislative, and Executive.

The LORD is all three, but mere men can not be entrusted with more than one at a time.

Power corrupts, and absolute power corrupts absolutely.

ITguy on August 7, 2014 at 12:47 PM

Of the 30 million, who’re actually supposed to pay penalties for not having obama’care’, only about 4 million are expected to, at max. It’s an ‘honor’ system and if you had an aunt Zeituni die, no matter your relationship with her, you qualify for ‘hardship’ exemptions. There are myriad of ‘hardship’ exemptions and you don’t have to supply any documentation for your claim.

Oaf was against mandates when he ran against Hillary, just a reminder.

Schadenfreude on August 7, 2014 at 12:09 PM

..also slightly OT but isn’t it delicious how the IRS is set up to enforce this and they have shown themselves to be above the law when enforcing the will of the thugs in the executive branch?

To hell with impeachment! I tell ya, we have a perfect storm for revolution brewing. Lock and load, bro, lock and load.

The War Planner on August 7, 2014 at 12:54 PM

Fenris on August 7, 2014 at 12:39 PM

From where I live, it is good common practice to muck your own stable first before complaining about your neighbours smelly stable. Unless each party will honestly self police, nothing will change. We truly only have one party currently.

HonestLib on August 7, 2014 at 12:56 PM

He didn’t get the nickname “Bathhouse Barry” for nothing…

PatriotRider on August 7, 2014 at 12:32 PM

Bathhouse Berry. Yuck. Is that some sort of strawberry dipped in…..er, chocolate?

Ben and Jerry’s Bathhouse Fudge and Berries. Nope, ain’t buying.

HonestLib on August 7, 2014 at 1:00 PM

Someone remind me..what were these egregious examples of Presidential power invoked by Bush that generated such ire from the left?

Ricard on August 7, 2014 at 1:02 PM

HonestLib on August 7, 2014 at 12:56 PM

I agree, which is why my post was primarily critical of the Republicans. Or are you saying that there should be no opposition party; nobody should criticize the Democrats while they are in charge? That’s ludicrous. It’s true there is no opposition party to speak of, but the idea that there should not be one is ludicrous.

Fenris on August 7, 2014 at 1:02 PM

I agree, which is why my post was primarily critical of the Republicans. Or are you saying that there should be no opposition party; nobody should criticize the Democrats while they are in charge? That’s ludicrous. It’s true there is no opposition party to speak of, but the idea that there should not be one is ludicrous.

Fenris on August 7, 2014 at 1:02 PM

I agree with your post that I quoted. First, I really do believe there ain’t a hairs difference between R’s and D’s currently. Second, I think ALL politicians should get the “Bush” treatment and be treated with respect while asking tough questions and making all politicians and unelected officials accountable to the voters. All should be on the hot-seat daily.

Sorry for my bad explanation the first go-around.

HonestLib on August 7, 2014 at 1:10 PM

shows that we have not learned that lesson at all and still love executive power …. when exercised on behalf of our own hobby horses:

Who’s this we you speak of?

Cindy Munford on August 7, 2014 at 1:24 PM

Ricard on August 7, 2014 at 1:02 PM

They will say the wars, even though they voted for them. They will also say the Patriot Act, which they voted for and The Won has expanded on. Remember they don’t have to tell the truth.

Cindy Munford on August 7, 2014 at 1:26 PM

Imagine that your legacy is:

Worse than Nixon

Worse than Carter

Schadenfreude on August 7, 2014 at 12:13 PM

Indeed.

workingclass artist on August 7, 2014 at 1:30 PM

Who’s this we you speak of?

Cindy Munford on August 7, 2014 at 1:24 PM

Beat me to it. I guess I missed it when the right was cheering for lawlessness.

Syzygy on August 7, 2014 at 1:33 PM

Sorry for my bad explanation the first go-around.

HonestLib on August 7, 2014 at 1:10 PM

I didn’t read it very charitably either, you did already say “we only have one party currently” in the previous post. That’s what the internet does to me; it makes me suspicious of everybody.

Fenris on August 7, 2014 at 1:34 PM

Dude, that was like four decades ago.

Tard on August 7, 2014 at 1:45 PM

Bringing Kenyan Rule to America!
We’ll have a Kenyan Economy soon too!

Privatize It on August 7, 2014 at 1:53 PM

It is a fallacy to say congress does nothing. The house sent 32 bills to the senate regarding employment.

Obama began warning that this violated his sense of “economic patriotism,” saying, “I don’t care if it’s legal” – which is exactly what the executive in the constitutional model should care about.

I hope our overlord King putt, the imperious reader pushes on “On his own” and does these things. The “unexpected” consequences will finish off our economy and the dems.

Zero thinks we are booming by the way. He really believes that horse manure he’s shoveling.

Companies will move where there is a more hospitable environment. We have many recent examples with firearm manufacturers.

Giving amnesty to 20 or 30 million illegals, make no mistake about it and let me be clear, there are at least that many, will completely crush wages. There are so few jobs for teenagers, recent grads and African americans, they will be pushed into cardboard dwellings lined up near the big green dumpster.

dogsoldier on August 7, 2014 at 1:54 PM

The nucular option was Lexington and Concord.

The Choom Gang might want to remember that.

If they ever heard of it.

The Left/RINO right are for slave labor, just without the chains, and for child abuse.

Schadenfreude on August 7, 2014 at 12:07 PM

Wait till the first time some of those Central Americans try to redress their grievances the way it’s done back home.

Then you’ll see chains.

formwiz on August 7, 2014 at 3:03 PM

Privatize It on August 7, 2014 at 1:53 PM

We are not far off now, but the media LIE HARD to obscure it.

dogsoldier on August 7, 2014 at 3:09 PM

dogsoldier on August 7, 2014 at 1:54 PM

To Barack Obama and his rabid supporters, Cloward / Piven is a good thing.

Athos on August 7, 2014 at 3:18 PM

It’s Harry Reid’s fault. If he would let the Senate function compromise would be reached. We are at the mercy of community organizers.

NYCMike on August 7, 2014 at 3:21 PM