Vox: The president becomes more powerful when Congress doesn't act

That’s news to me, but if you asked me to guess what Vox’s line would be on O’s ever more ambitious power grabs, this would’ve been it. Ezra Klein:

Just as Congress is too divided to do anything; it’s also too divided to stop the other parts of government from doing something. Congress can’t pass a law solving the immigration crisis but it also can’t pass a law stopping Obama from trying to solve it. It can’t pass a law regulating carbon emissions but it also can’t pass a law stopping the Environmental Protection Agency from regulating carbon emissions. And that’s because big portions of Congress want these actions to be taken; they happen because they enough congressional support to survive.

A point made by skeptics of Obama’s executive actions is that inaction is a congressional choice that needs to be respected. But if Congress is making a choice when it doesn’t pass a bill to do something, it’s also making a choice when it doesn’t pass a bill to stop another branch of government from doing something. Inaction cuts both ways as an expression of congressional will.

Either I’m misreading that or Klein’s replacing the idea of enumerated powers with some sort of congressional right of first refusal on policy. We prefer that Congress handle major legislative changes, he seems to be saying, but if they’re deadlocked along partisan lines then Obama and the Supreme Court have little choice but to step in and handle some of Congress’s business. (How much isn’t clear.) Where this idea comes from, I don’t know. Klein seems to assume that sometimes government simply must, must act, and if the branch responsible for action is frozen for whatever reason, then the others pick up the slack. Maybe you could make that argument in a case of dire emergency — although even then, as we saw with TARP, Congress can heal its rifts pretty quickly — but how does it justify massive executive action on immigration, a policy problem that’s lingered for decades? The point of enumerated powers is to restrain government by narrowly defining what each branch can constitutionally do; the idea that one branch gets to claim the powers of another if the other doesn’t act fast enough, whatever that means, is the opposite of that. Vodkapundit Steven Green summarizes Klein’s argument this way: “[A] good way for Congress to keep the President from getting too powerful is to do what he wants.” Precisely.

In fact, says Leon Wolf, enumerated powers means that the president has less power when Congress doesn’t act, not more:

By way of reminder, under Article 2, the President’s power exists within the domestic sphere to enforce the laws that are passed by Congress. If Congress does not pass a law, the President does not have a law to execute, and therefore his power shrinks, at least under the Constitution.

The Constitution does not envision a regime in which “smart” people like Ezra Klein and Barack Obama decide that a given policy must exist – and then following this decision, Congress gets a ceremonial first bite at the apple of passing a law in accordance with this policy, and if they fail to do so, the President gets to just enact the policy anyway. That is not how the separation of powers works. There is no universe in which it simply must be that an immigration reform proposal makes it to the President’s desk within the calendar year, and if it does not do so, everyone simply accepts that the President has the authority to do what Congress clearly meant to do in the first place.

To be fair to Klein, he doesn’t go so far as to endorse Obama’s executive amnesty, having not seen the actual order yet, and he admits that the precedent being set here could take the country down an antidemocratic road. And yet he’s laying the ideological groundwork for it by arguing this way. For instance, explain this to me:

And there are, of course, real dangers to the president repeatedly stretching his powers. Conservative critics go too far when they pretend that Obama’s actions are unprecedented. President Jimmy Carter, for instance, unilaterally pardoned hundreds of thousands of draft dodgers — an action more extreme than anything Obama is said to be considering. At the same time, there do need to be limits on the president’s ability to win policy fights by selectively enforcing laws.

How is pardoning a few hundred thousand draft dodgers “more extreme” than unilaterally amnestizing five million illegals? You can disagree with what Carter did but the pardon power squarely belongs to the president under Article II. Which clause gives the president the power to formally legalize people who’ve come here without following the procedures set forth under federal law? And another thing: What happens under Klein’s argument if Congress does act but the president himself moves to block it? That is to say, if Republicans retake the Senate this fall and Congress passes a bill formally ending DACA next year, would Klein support Obama vetoing that bill and then turning around and expanding DACA? Because if that’s okay too in the name of taking “necessary” action, with Congress left with no recourse against executive decrees except supermajority veto overrides in both chambers, then we’ve already arrived at the sort of caesarism Ross Douthat was worried about in his NYT column this weekend.

The irony of Klein’s piece is that it inadvertently undermines the left’s best defense to Obama’s mega-amnesty. They could argue that if voters don’t like it, they can always express their upset with O and his party at the polls this fall. That’s how democracies are supposed to work, in theory; if the president overreaches, the people will punish him for it. That’s not how constitutional democracies work, where the Constitution itself limits the president’s power whether or not the majority of voters supports expanding it, but framing one’s argument in terms of popular will is always appealing. Klein’s argument tosses that out the window, though. Instead of arguing that we should let the people decide both ends of this issue — if they dislike congressional gridlock, they’ll give the House back to the Democrats or the Senate back to the GOP, and if they dislike what Obama does with executive action in the meantime, they’ll punish Democrats accordingly — he seems to allow no democratic remedy for gridlock. We simply can’t wait for the damned voters to resolve this impasse by electing a Congress capable of forming a consensus on tough policy matters. We need Obama to act, now. But why?

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Jazz Shaw 5:31 PM on December 01, 2022