Quotes of the day

Congressional Republicans are taking President Obama to court over his use of executive power to sidestep Congress

“We can go to court,” Sen. John McCain (R-Ariz.) said. “We haven’t got many more options except [to] tell the American people that we’re seeing an abuse of the intent of the Constitution.”

Republicans have launched a salvo of legal actions to challenge the president on issues ranging from the implementation of the Affordable Care Act to the National Security Agency’s (NSA) surveillance programs…

GOP lawmakers argue the administration’s selective enforcement of the healthcare law amounts to an unconstitutional exercise of power. They point to the administration’s decisions to delay health insurance requirements, cap out-of-pocket costs and expand the employer mandate penalty.


Despite anticipation that President Barack Obama would seize on his authority to act without U.S. congressional approval, his State of the Union speech appeared to mention only a handful of executive actions that could face legal challenges.

In his Tuesday night speech, Obama stayed away from the kind of bold, detailed proposals that some lawmakers and media pundits said beforehand would shake up his relationship with Congress, legal experts said afterward.

He vowed to act on his own but offered modest or vague ideas that hardly stretched what Americans think of as a president’s power, and that were unlikely to send business organizations rushing to file many lawsuits in courthouses…

“The theme was clearly there,” Levey said. “It might have been a little more conciliatory, a little less explicit than I anticipated.”


The president’s taste for unilateral action to circumvent Congress should concern every citizen, regardless of party or ideology. The great 18th-century political philosopher Montesquieu observed: “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.” America’s Founding Fathers took this warning to heart, and we should too.

Rule of law doesn’t simply mean that society has laws; dictatorships are often characterized by an abundance of laws. Rather, rule of law means that we are a nation ruled by laws, not men. That no one—and especially not the president—is above the law. For that reason, the U.S. Constitution imposes on every president the express duty to “take Care that the Laws be faithfully executed.”…

In the more than two centuries of our nation’s history, there is simply no precedent for the White House wantonly ignoring federal law and asking private companies to do the same. As my colleague Democratic Sen. Tom Harkin of Iowa asked, “This was the law. How can they change the law?”


Executive orders like the one he will employ to raise the minimum wage paid by federal contractors may be the only route available to the president given deep hostility from the Republican majority in the House and a Congress increasingly focused on the 2014 elections rather than Barack Obama’s legacy.

But with some notable exceptions, only so much can be delivered through the president’s pen if he is not using it to sign legislation. He cannot raise the minimum wage for most workers, overhaul the Social Security system, grant legal status to millions of undocumented immigrants, reorder spending and taxes, or even make necessary fixes to the health care law…

“There is nothing like legislation,” said Rahm Emanuel, the Chicago mayor, the president’s first chief of staff and a former House member who advocates the strong use of executive power. “But given the challenges that are mounting, the country cannot afford Congress to go M.I.A.”


Here’s a rough test. The president can exercise some legislative powers when i) Congress has delegated such power to the president by statute – most executive orders implement statutorily-given discretion, OR, ii) the President is exercising one of his office’s inherent constitutional powers.

For the domestic policy issues the President addresses in the State of the Union, inherent presidential powers are an unlikely source – national economic policy falls squarely within Congress’s purview. However, numerous statutes or gaps in statutes may have given the President the patchwork of authority that he will try to leverage to advance his policy goals – we will see. In such situations, the presidential action is constitutional. So that is what to look for: statutory authorization.

But if the president does have some kind of statutory authority, he is not “bypassing Congress” – he is serving it. That is, he is using the power given by Congress in the past, and which the current congress has chosen not to repeal.


But there are limits. Because executive orders are intended first and foremost to direct the conduct of the executive branch, they must be sensitive to diverse opinions and interests within the executive branch. Typically, the interagency consultation needed to produce executive orders is neither quick nor simple.

Nor are these orders self-executing. The more of them there are, and the more controversial they are within the executive branch, the less likely it is that they will be enforced. Shortly after leaving office, Bill Clinton told an interviewer, “One of the things that I was frustrated about when I was president was that . . . I’d issue all these executive orders, and then you can never be 100% sure that they were implemented.” The Obama White House, which has not always given implementation the attention it needs, will have to raise its game.

Compared with legislating in our system of separated powers, issuing executive orders always looks easier and faster. But inadequate checks and balances can lead to ill-considered actions based on erroneous information, especially when national security seems to be at stake. FDR’s post-Pearl Harbor internment of 110,000 Japanese-Americans remains a blot on our nation’s honor. In the wake of 9/11, executive-branch decisions concerning intelligence collection and interrogations techniques have proved controversial and damaging.


[T]his is less about his actions, and more about how they stand as a rebuke to the last three years of GOP behavior. Since taking control of the House in 2011, Republicans have committed themselves to blockading as much of the administration as possible. They’ve filibustered nominees, blocked appointments, and killed legislation, regardless of whether they stood with on the merits. Their only concern—their only goal—was to damage Obama’s credibility and keep the White House from scoring any points…

Obama’s executive actions are a response to public concern, and one that Republicans can’t match, on account of their paltry agenda. Instead, the plan is to snipe at the president’s proposal—to paint it as unconstitutional—in hopes that they can tarnish the attempt and keep Obama from salvaging his job approval.


Off-year elections tend to be won and lost over which party turns out their base. This is why Republicans will continue to assail Obama’s use of executive power. By the same token, there is a political upside for Obama to sign more orders. It’s not just about policy. His base cheers these moves.

All of which means the debate will probably linger as we approach the midterm elections…

Executive orders can’t be undone by Congress. But they can be reversed by a new president. That means we may hear yet more about them as the 2016 elections approaches — especially on the Republican primary side.