Gridlock as a Grant of Power

Throughout his second term, Obama increasingly governed by executive fiat. “I’ve got a pen, and I’ve got a phone,” he bragged, and he proceeded to use them to, among other things: pressure schools throughout the country to adopt national curriculum requirements Congress never authorized; promulgate new rules that nearly quadruple the number of workers eligible for overtime pay; force American power plants and, ultimately, electricity consumers to bear billions of dollars of costs in reducing greenhouse gas emissions, despite the fact that Congress has never voted to treat CO2 as a pollutant; issue regulatory “guidance” documents purporting to make the rules for nearly every school and workplace bathroom in the United States; and unilaterally amend the Affordable Care Act by ignoring clear statutory mandates and deadlines.

During his efforts to rewrite the Affordable Care Act on the fly, Obama even invented a presidential “power of the purse” and ordered the disbursement of billions of dollars in “cost-sharing” subsidies that Congress never appropriated. When IRS officials voiced doubt about the legality of those payments, they got the kind of strong-arm briefing David Addington, “Cheney’s Cheney,” specialized in during the Bush years. The dissenters were handed a secret memo rationalizing the move, told they “could not take notes or make copies,” and informed that the attorney general had declared the expenditures legal. Whatever the source of that authority might be, Obama officials couldn’t specifically identify it under questioning at a congressional hearing last July, though a top Treasury official volunteered: “If Congress doesn’t want the money appropriated, they could pass a law that specifically says don’t appropriate the money from that account.”

More than any recent president, Obama has embraced and, to some extent, legitimized the anti-constitutional theory that congressional inaction is a legitimate source of presidential power. It’s a theory future presidents will build upon. In the words of the University of North Carolina legal scholar William P. Marshall, “The genies of unilateral executive action are not easily returned to the bottle.”