ore than four decades after Arthur Schlesinger, Jr., warned of The Imperial Presidency, our chief executive now boasts, “I’ve got a pen and I’ve got a phone.” Since that proclamation, President Obama has unleashed a succession of unilateral actions designed to circumvent Congress — rulemaking by executive agencies, executive orders, and selective enforcement of duly enacted legislation.
In response, House Speaker John Boehner (R-OH) announced that he will sue the president for usurping specified legislative functions. That’s a tall order — not because Obama isn’t guilty as charged, but rather because Boehner must first show that he has legal standing to file the lawsuit. Historically, members of Congress have not been able to impugn the president’s authority through litigation. The courts have held that members’ injuries — which must be concrete and particularized in order to trigger standing — are too “abstract and widely dispersed.” On the other hand, creative lawyers advising Boehner argue that his lawsuit will be readily distinguishable from past cases that addressed standing. (See David Rivkin and Elizabeth Price Foley, “Can Obama’s Legal End‐Run around Congress Be Stopped?” Politico, January 15, 2014.)
On the merits, the president has plainly overreached. For starters, consider his misuse of executive agencies. Case in point: The Affordable Care Act directs that health insurance policies cover “preventive services,” which an executive agency has defined to comprise all contraceptives approved by the Food and Drug Administration. Several employers objected to 4 of the 20 approved methods on religious grounds and asked the Supreme Court to intervene. In Burwell v. Hobby Lobby, the Court held that the agency’s regulation — never enacted by Congress — violated the Religious Freedom Restoration Act. Sadly, ACA regulations are just the tip of the iceberg.
More than 300 executive and independent federal agencies pass rules affecting how we live our lives. Indeed, one of those agencies, the highly politicized National Labor Relations Board, was led by commissioners who were supposedly appointed by Obama while the Senate was in recess. Actually, they were appointed while the Senate was merely on break. In a 9–0 opinion (NLRB v. Noel Canning), the Supreme Court instructed Obama that the Senate, not the president, decides when the Senate is in session. Legal challenges are now underway to NLRB rules promulgated while the board was unconstitutionally staffed. But that won’t stop the president.
A second tactic by which he has bypassed Congress is through executive orders. Ordinarily, such orders are legitimate when issued pursuant to a grant of authority from Congress, to fulfill the president’s commander‐inchief role or to control the internal workings of executive agencies. Most other uses are misappropriations of legislative power. To illustrate: In 2010, Congress rejected the Dream Act, which would have provided a path to citizenship for certain illegal aliens. Two years later, Sen. Marco Rubio (R-FL) proposed a lite version, with a path to legal residency but not citizenship. Congress also rebuffed that version.
Shortly thereafter, President Obama essentially enacted the Rubio version by executive order. Many of us regret that the bill wasn’t passed; but the president can’t decide to implement a law merely because he thinks it’s a good idea — especially a law rejected by Congress. The job of Congress is to legislate; the job of the executive is to execute — but only those laws validly enacted. That concept seems irrelevant to President Obama — not only with respect to our immigration laws but other laws as well, including selected components of gun control, healthcare, and education. In some instances, he has used executive orders despite an explicit decision by Congress not to do what he then does.
By comparison, the Boehner lawsuit will center on the president’s nonenforcement of laws that are supposed to be enforced — specifically, his delay of the ACA employer mandate, just one of Obama’s 30+ modifications of ACA provisions. If Boehner had wanted to go further, he could also have questioned Obama’s directive not to prosecute most violations of federal marijuana laws. That directive might be smart politically, and it was congenial to Cato libertarians, but Congress declared that marijuana should be banned. That’s the law of the land. The president can change priorities and he can allocate scarce resources, but he cannot repeal a law by executive decree.
The animating sentiment at the time of the Founding was fear of executive power — return of the king. Against that backdrop, President Obama now claims unilateral powers with minimal safeguards. He may be commander‐in‐chief of the armed forces, but he is not commander‐in‐chief of the entire nation, and he should recall James Madison’s admonition in Federalist 51: “In republican government the legislative authority necessarily predominates.”