Resist Obama’s Fourth Quarter Constitutional Power Grab

William A. Jacobson William A. Jacobson is Clinical Professor of Law and Director of the Securities Law Clinic at Cornell Law. He is a 1981 graduate of Hamilton College and a 1984 graduate of Harvard Law School. Professor Jacobson also is the founder and publisher of two popular websites, Legal Insurrection and College Insurrection.
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In his final press conference of 2014, President Obama warned that “My presidency is entering the fourth quarter. Interesting stuff happens in the fourth quarter. And I’m looking forward to it … I’m certainly not going to be stopping for a minute.”

In his State of the Union (SOTU) address, Obama carried that theme forward, proposing an aggressive redistribution agenda, some of which already had been hinted at previously.

It is what is widely called Obama’s Robin Hood Agenda.

Even prior to the SOTU, Obama proposed “free” community college for all, a call repeated in the SOTU. Of course, there is no such thing as a free lunch or education – someone has to pay for it. That “someone” will be the “rich” through higher capital gains and estate taxes.

Additional aspects of the Robin Hood Agenda set forth in the SOTU included universal preschool and childcare through an additional $3000 tax credit; mandatory worker sick and maternity leave to be implemented by the states; and an increased minimum wage, plus expanded broadband coverage.

There is a certain now-familiar irony in Obama proposing benefits people like that really are not free – someone has to pay for them either directly (taxes) or indirectly (increasing the national debt).

On top of that, Obama called for increased funding for infrastructure projects and strengthened union laws, a way of subsidizing political friends on make-work projects that aren’t even shovel ready, as happened under the 2009 Stimulus Plan.

There may be some pro-growth areas where Obama and Congress could agree, but if Obama insists on tax increases to fund the Robin Hood Agenda, agreement will be difficult.

It’s fair to say after the SOTU that there is little chance Congress will take up, much less pass, most of the Robin Hood Agenda, which will frustrate Obama to no end.

We know what Obama does when he is frustrated with Congress: He ups the class warfare rhetoric then goes it alone.

The past is prologue.

Expect Obama to push regulatory authority to the extreme, coupled with executive action. There will be court challenges and congressional disgust, but Obama will create facts on the ground that he hopes will never be reversed.

On Obamacare, there were unilateral changes meant to jerry-rig the economics to keep the plan alive.  Obama also used the EPA to remake the nation’s energy and environmental landscape to put the coal industry and coal powered plants out of business, as he once predicted would happen. Even liberal Harvard Law Professor Laurence Tribe has called Obama’s new EPA regulations “lawless” and “throwing the Constitution overboard.”

On immigration, Obama is implementing an unprecedented change to the immigration laws without congressional approval to create a special legal status for approximately five million illegal immigrants.

So when it comes to implementing the Robin Hood Agenda, we know that Obama will attempt to make an end run around the constitutional limitation of his office. We’ve been there, and he’s done that.

What is Congress to do?

First, do no harm. Don’t agree to harmful Obama policies unless the trade-off for pro-growth, pro-free market policies is overwhelmingly in favor of freedom.

Second, play hardball when it comes to unconstitutional and illegitimate executive action. Obama wants to violate the immigration laws, then he doesn’t get nominees (other than national security) through the Senate. Having packed the lower courts at the end of the last Congressional session, the Obama judicial legacy must end if Obama is going to usurp the legislative power given to Congress in the Constitution.

Third, use the power of the purse.  I realize Congress is hesitant to go there after the “shutdown” (which really wasn’t a shutdown except for the cameras) in October 2013. But if Congress doesn’t use its ultimate power, then it will become irrelevant.

So cooperate where good for the nation, but resist and fight when it’s not.

William A. Jacobson is clinical professor at Cornell Law School and publisher of Legal Insurrection Blog.