The self-fulfilling prophecy of an all-powerful president

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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During last week’s Republican presidential debate in Arizona, Mitt Romney said: “I will repeal Obamacare.” In a February 4 tweet, Newt Gingrich said: “On day one I will repeal Obamacare.” In a campaign ad released on December 9, Rick Perry said: “I’m an outsider who will repeal Obamacare.” Last June 14 on “Good Morning America,” Michele Bachmann said: “I will repeal Obamacare.” The Obama/Biden 2012 campaign website states: “President Obama passed the Affordable Care Act.”

So there you have it. Our sitting president and four Republicans who aspire to the office assert that they can single-handedly enact or repeal the laws of our nation. In the president’s case, he may actually believe it. It was only a few days ago that he said, “When Congress refuses to act, Joe and I will act.” But he and two of the four Republicans have served, or now serve, in the United States Congress. You would think they might show a little more respect for the constitutional role of the people’s elected representatives.

To his credit, former senator Rick Santorum has been a little more circumspect. He wrote in yesterday’s Wall Street Journal that “I’ll submit legislation to repeal Obamacare.” But then he also wrote that “all Obama administration regulations that have an economic burden over $100 million will be repealed,” and “I’ll cut means-tested entitlement programs by 10% across the board, freeze them for four years, and block grant them to states.”

OK. I know. These folks must know that the president cannot enact or repeal laws, though, as Obama has demonstrated, they can do a lot of law-making through executive orders and administrative rule-making. So, if President Obama knows that he did not pass the Affordable Care Act, and the four Republicans know that, if elected president, they could not repeal it, why do they claim to the voters that they can and will?

I suspect the political consultants counsel candidates to portray a take-charge, get-things-done image and, given the sorry state of civic knowledge among the American electorate, a whole lot of voters won’t know the candidates are promising to do what they cannot. Saying “I will repeal Obamacare” makes for a better sound bite than saying “I will do everything I can to persuade both houses of Congress to repeal Obamacare, and if I am successful, I will sign the bill.”

But if everyone running for president says it, and they say it over and over again, it starts to have a life of its own. People, including the candidates themselves and the president when elected, start thinking the president is all powerful — that the president can take over private companies, reallocate private interests in those companies, appoint powerful executive officials (czars) without Senate confirmation, invade foreign nations, make recess appointments when the Senate is not in recess, impose carbon-emission regulations by executive fiat — in sum, act when Congress has declined to act.

Imagine that George Washington or John Adams had announced an executive department initiative called “We Can’t Wait.” We can’t wait for Congress to take action, so the president will just do what needs to be done. The founding generation agreed that they needed a stronger executive than they had at first thought, but they explicitly limited the president’s powers. Article II of the Constitution vests the executive power in the president. It makes the president commander in chief, and provides for the making of treaties and the appointment of ambassadors, judges and officers with the advice and consent of the Senate. But when it comes to making laws, the president only has the power to approve or veto laws duly enacted by Congress. He can twist arms and lobby for bills he would like to see enacted, but he has no power to make laws.

Yet candidates for the presidency and the president himself routinely say they will pass this law and repeal that law. The very smart people in the press never challenge them on these clearly erroneous statements. Is it just harmless hyperbole? Or does it lull Americans into believing that their president actually has the powers he claims to possess?

Maybe what the whole country needs is a refresher course in the rule of law and constitutional government. The founders of this great nation did us the favor of overthrowing an imperial monarch. If we keep talking like we have an imperial president, we may just find ourselves with one.

Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.