Do Democrats Really Believe Obama Is Within The Scope Of Executive Power?

Jim Huffman Dean Emeritus, Lewis & Clark Law School

Do Democrats truly believe that Article II of the Constitution grants the president all of the powers President Obama proclaims to have and has in fact exercised? Or are they just going along because they agree with the president’s policy agenda? We can rest assured that with an equally assertive Republican president, Democrats would be objecting on constitutional grounds.

Of course, Republicans have been similarly pragmatic and unprincipled when a Republican occupies the White House. It seems there is bipartisan agreement to be partisan about the constitutional limits of the presidency.

The reality is that most presidents since the founding of our nation have pushed the constitutional boundaries of executive power. That is as the framers of the Constitution anticipated. The framers also expected that the other branches of government would sometimes endeavor to exceed their constitutional authority. And it was expected that the majority, acting directly or through its elected representatives, would overreach even to the extent of tyrannizing minorities. The framers wrote a constitution designed to restrain these inevitable abuses of power.

There is room for honest disagreement over whether particular acts taken by our current president are within his constitutional authority. While forty years of teaching and studying constitutional law leads me to conclude that President Obama has exceeded his powers on several occasions, I am willing to hear arguments to the contrary.

But most of the arguments I hear are variations on one of three themes: 1) the President is compelled to act because Congress has failed to take action on a really important matter, 2) previous presidents have taken similar actions, or 3) if Obama is allowed to exceed his authority future Republican presidents will do the same. It is worrisome that any of these arguments is thought to be persuasive or even relevant to the question of the constitutional authority of the president.

That Congress has failed to act on a problem the president believes to be pressing and of great importance has nothing to do with whether or not he has the constitutional authority to act. Either he has the authority or he does not. In the case of immigration reform President Obama acknowledged several times that he could not do what he has since done. In finally acting, Obama lamented that Congress had failed to act, but congressional failure to act where it has authority to do so is a decision not to exercise that authority, not a justification for executive action.

Actions taken by previous presidents do suggest what those presidents believed they had authority to do, but given that a founding presumption was that all presidents would exceed their authority if not constitutionally limited, prior presidential actions should carry little precedential weight. As Justice Frankfurter wrote in his concurrence to the Supreme Court’s ruling that President Truman had exceeded his authority in seizing the nation’s steel mills during the Korean War:  “The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”

That excesses by President Obama will invite similar excesses by future Republican presidents might be persuasive to some Democrats and might be perceived as a threat when uttered by Republicans, but in either case it is a political, not a constitutional argument. If we allow political calculations of potential partisan advantage or disadvantage to influence our judgment on the legitimate scope of executive power, we will have abandoned the constitutional separation of powers to raw political calculation.

When past presidents have pushed the limits of executive power there usually have been at least a few in the president’s own party willing to question on the ground that constitutional principle must outweigh political purpose. With the exception of law professor Jonathan Turley, a self-proclaimed Democrat who has agreed to represent the House of Representatives in its challenge to President Obama’s implementation of the Affordable Care Act, such members of the current president’s party are few and far between. It is particularly disappointing and surprising that nary a single Democrat in Congress has seriously challenged the president’s intrusions on the constitutional powers of the institution to which they have been elected.

Every member of Congress takes an oath to support and defend the constitution of the United States. It would be a good thing for the republic if that oath were understood to mean that the constitution trumps politics. If it does not, we will have abandoned the rule of law to the rule of raw political power. Democrats and Republicans alike must be willing to object when presidents of either party exceed their authority.