It’s been a wild couple weeks in Washington for the separation of powers.
First, Speaker John Boehner announced that the House plans to sue the president for violating his oath of office by failing to enforce the law and making his own laws without the consent of Congress. Next, the Supreme Court ruled 9-0 that the president violated the Constitution by making illegal appointments to a federal labor board.
Then, the Court ruled that the president’s health care law violates the religious freedom of pro-life family business owners. Finally, the president declared that he’s going to reform immigration on his own since Congress won’t agree with his plan to provide blanket citizenship to everyone who is in the country illegally.
The cynic might think the president’s immigration pronouncement was meant simply to deflect attention from the Supreme Court’s rulings. But, perhaps more alarmingly, the president may really believe that he doesn’t have to respect constitutional constraints on his authority.
As a senator, Barack Obama seemed to recognize the constitutional limitations of the presidency arguing, “[t]he biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the Executive Branch and not go through Congress at all.” Today, President Obama vows to govern with his “phone and pen,” because “we are not just going to be waiting for legislation.” As a former constitutional law professor, the president should know better.
Our founding fathers established three separate but equal branches of government, each with the ability to provide checks and balances on the others’ power. Many of us learned this basic civics lesson in elementary school. President Obama isn’t the first president to stretch the bounds of executive authority. Inherent tensions between the legislative branch, which makes the laws, and the executive branch, which enforces them, have existed since the earliest days of our Republic.
But, this President’s blatant disregard for the law — and his willingness to act unilaterally on major issues without congressional authorization — have damaged our system of government more than any of his predecessors. On matters ranging from health care to energy to foreign policy to education, and now immigration, President Obama has repeatedly circumvented Congress through executive action — creating his own laws and excusing himself from executing statutes he is sworn to enforce.
That’s not how laws are made in America. Our democratic republic demands spirited debate and a vigorous contest of ideas, carried out on behalf of the people by their elected representatives. The administration has attempted to circumvent Congress and muzzle that debate, threatening the fundamental idea of separation of powers and loosening the checks and balances by one branch of the government on the other. His disregard for our system of government — which has worked better than any other for 238 years — threatens to alter the fundamental relationship between Congress and the presidency in ways that could change the course of history.
The president’s supporters dismiss these concerns by pointing to the fact that he has issued fewer executive orders than his predecessors. That argument misses the point; it’s about the consequences of those orders, not just the number. And this president, in many cases, has simply ignored the law — like secretly releasing five dangerous terrorists without consulting Congress — and not even bothered to issue an official declaration of his lawlessness. He also has bypassed executive orders in favor of less official ways of acting, like having staff issue agency-wide letters about stopping deportations or making blog posts about delaying key provisions of his health care law.
The pending House lawsuit and the Supreme Court’s slap-down of his executive overreach should have served as a wake-up call to the president to stop speeding down the same partisan road he’s traveled for his entire presidency. Unfortunately, instead of acknowledging the limits on his power, the President doubled-down on his use of executive power, announcing in the Rose Garden that he’s going to “fix” immigration problems “without Congress.”
Proponents of amnesty may cheer that choice today, though they may regret when future presidents are emboldened to run roughshod over the people’s representatives and exercise power in the same manner tomorrow. That’s the kind of change for which no one should hope.
