“This ain’t about justice. You think this is about justice? No! This is about order! Who rules. ‘Cause, see, fascism is coming back!”
—Kevin Bacon as Willie O’Keefe in JFK
Here’s a trivia question for you: who governs the United States? If you ask this question on the street, my guess is nine out of ten people will answer “the President.”
And they’ll be wrong.
Monday’s Houston Chronicle re-printed a half-page no-byline piece from the New York Times entitled “Obama’s Use of Executive Action Growing,” outlining the Administration’s increasing resort to executive fiat to accomplish agenda objectives Obama can’t get through Congress.
We’re glad you noticed.
Obviously, this is an issue I’ve chronicled many times in this space over the last year. Attempting to pass it off as simply Obama finally catching up to the normal Presidential exercise of initiative, the piece quotes NYU law professor Richard H. Pildes: “Obama’s not saying he has the right to defy a congressional statute[.]” I guess Pildes missed Obama partially repealing No Child Left Behind by executive order, re-writing Obamacare by agency rule, and unilaterally refusing to enforce immigration laws and the Defense of Marriage Act through an express policy of inaction by the Departments of Justice and Homeland Security.
What’s scary, though, is the very matter-of-fact tone the article takes with respect to the creep of Presidential authority. The piece is correct that Obama’s use of executive orders isn’t new—in fact the practice dates back to at least Jefferson. My concern is the apparent general acceptance of the notion that Presidents can wield original power via the issuance of unilateral edicts. Worse, the article repeatedly couches the use of executive action in terms of the normal exercise of the “executive power to govern,” or changes in Obama’s “governing style.” Hell, even Newt Gingrich was out there earlier this week talking about the need to make sure that presumptive GOP nominee Mitt Romney is “effective both in winning this fall and then, frankly, in governing.”
University of Chicago political science professor William G. Howell is quoted in the article as saying the concept is “built into the institution of the presidency.” Harvard law professor Jack L Goldsmith says “this is what presidents do.” And I fear that among the general population there is widespread acceptance that this is OK, and an assumption that the President in fact has the authority to rule in this fashion.
Well, he doesn’t.
Article II of the Constitution lists the powers of the President, and there are exactly five: (1) the “executive power” (Section 1), (2) the power to act as Commander in Chief (Section 2), (3) the power to grant reprieves and pardons for offenses against the United States (except impeachments) (Section 2), (4) the power to make treaties (with Senate approval) (Section 3), and (5) the power to appoint ambassadors and other public officials (Section 3). That’s it. Of these, the only one that needs any definition or further explanation is the “executive power.” “Executive” means “of or capable of carrying out duties,” or “empowered to administer laws.” To “execute” means “to carry out or administer.” To “administer” means “to manage.”
Carry out. Administer. Manage.
There can be no question that, in vesting the President with the “executive power,” all the Constitution authorizes is for the President to implement laws. Nowhere in Article II does the Constitution give the President the power to create laws; creating laws is what it means to legislate, and the power to legislate is expressly vested exclusively in the Congress in the Constitution’s very first substantive sentence. And the only power the Constitution gives the President to change or omit laws Congress creates is the limited power of veto, subject to override by a 2/3 majority vote. It is for the President to carry out the laws Congress gives him. It is not within the President’s commission to enact laws where Congress doesn’t, or to edit or delete the laws Congress does enact.
More to the point, nowhere in Article II do we see any form of the word “govern,” or anything suggesting the concept. To “govern” means “to exercise authority over; rule, control[.]” The President was never intended to rule or control anything. In fact, the Founders deliberately rejected this idea. The Declaration of Independence catalogued the “train of abuses and usurpations” of an absolute ruler, and the War of Independence was fought precisely to be rid of the despotism that results when total dictatorial power is concentrated in a single head of state. Suggestions that George Washington be installed as a king were discarded in favor of establishing the presidency as a temporary and specifically limited office.
No, the President doesn’t govern the United States—or at least isn’t supposed to.
Somewhere we’ve gotten away from the original idea, and have come to consider the President as a ruler, rather than as an executive. This is not just an Obama phenomenon; he is merely the latest incarnation in a long evolutionary chain. We now see Presidents behaving like the rest of government serves at their pleasure, as though Congress and the Supreme Court were so many corporate vice presidents reporting to him as the CEO, and the States merely wholly-owned subsidiaries of the all-consuming federal parent. This was essentially the relationship between King George III, Parliament, and the colonies leading up to the American Revolution.
Why do we put up with this? Have we become that lazy? Are we just so ignorant of our founding principles and the basic civic structure actually set forth in our founding documents that we don’t know any better? If we don’t speak up and get this genie back in the bottle, we’re going to turn around one day and find that it’s 1776 all over again.
Only this time the Redcoats have tanks and airplanes. And we don’t.