The executive "nuclear option" and missing the point of Watergate

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.


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