President Barack Obama has made it absolutely clear that he will rule by Executive Order for the remainder of his term. Republicans and independents have decried this as an unconstitutional power grab, a usurpation of authority granted by the Constitution to Congress, while Democrats are mostly too embarrassed to defend what they so strongly opposed under George W. Bush and Richard Nixon.
A conservative response should begin by observing that the U.S. Constitution is not as legally neat as the protesters suggest. While most folks focus on the uplifting sentiments of the Bill of Rights to liberty and property, the essential Constitution is all about power and how it is divided. The progressive myth of a legalistic constitution of rights is just that, a fable to cover its own view of political power. The Bill of Rights was not even part of the original document. The fundamental Constitution is outlined in its Articles, dividing power between legislative, executive, judicial, state and amendment institutions. But the boundaries between them are anything but clear.
Abraham Lincoln suspended judicial habeas corpus and controlled speech during the civil war without legal support from Congress and actual opposition from the Supreme Court. The succeeding Reconstruction Congress impeached the president for merely attempting to replace his own cabinet and when unable to convict him made his veto a nullity by strict party rule, rigged voter lists in the South, and effectively unicameralizing the Senate and House under a joint committee of Republican leaders. Andrew Jackson directly refused to implement a Supreme Court decision supporting Cherokee property rights, distaining the court to enforce its ruling if it could because he would not.
Isn’t the Supreme Court supposed to have the last word on these matters? In challenging President Bush’s attempt to replace regional U.S. Attorneys against Congressional opposition in 2006, Democratic Rep. Henry Waxman said such differences between the executive and legislature must be umpired by the courts. He and his classmates were taught in law school that “the Constitution was what the Court said it was.” Bush replied he would not allow his Attorney General to enforce a judicial contempt order even if the court issued one and that was that. More recently, President Obama announced he would not enforce federal anti-drug laws against states with marijuana legalization laws and refused to deport certain illegal immigrants. Back in 1988, Congress passed a Civil Rights Restoration Act specifically nullifying the Grove City Court decision and in 1991 passed a civil rights bill overruling five Supreme Court decisions by name.
Even with their relative decline in recent years, the states are not without redress either, as the marijuana legalization laws demonstrate. States have created constitutional amendments, laws, and attorneys general suits to circumvent national laws and opinions on marriage, abortion, racial preferences, gun restrictions, the Real ID Act, Obamacare (by more than half the states), and many others. Indeed, many federal laws and court decisions are administered by state bureaucracies that differ in their interpretation and enforcement greatly, as Alabama and Massachusetts in fact do. Amendments to the Constitution have been passed on many critical subjects over the years and on several occasions the mere threat has changed federal policy.
Taxes would seem one area where the legislature must predominate. No taxation without local representation was the principle complaint justifying the American war for independence. Today the effective imposition of taxes by creative executive regulatory interpretation—such as the recent increase in fuel emission standards—is the rule rather than the exception. Judges have required state legislatures to increase taxes to upgrade schools for minorities or to redress other presumed shortcomings for all kinds of special interest purposes. A St. Louis federal court in effect ran the local school for decades. Since the Supreme Court has ruled that the Obamacare penalties were taxes, exemptions and changed regulatory requirements are in effect taxes passed by the health and treasury secretaries alone.
President Obama is by no means the first to govern by Executive Order. Jefferson’s purchase of Louisiana and Lincoln’s Emancipation Proclamation were based on such orders. So were Franklin Roosevelt’s creation of his Works Progress Administration to fight the Great Depression, Dwight Eisenhower’s use of the military to enforce Little Rock school desegregation, John Kennedy, Lyndon Johnson, and Richard Nixon’s assertion of affirmative action to control employment discrimination, and Bill Clinton’s bailout of Mexico. Some even include Ronald Reagan’s centralization of agency regulatory approval in the White House, although that seems a more administrative than a policy action.
Yet, what can be done by executive authority can be undone by it. Reagan’s Mexico City restriction on the use of federal funds for abortion was annulled by Clinton, reinstated by Bush and revoked again by Obama. The latter’s administrative interpretations of the Affordable Care Act especially open up the possibility of what his successor might do to Obama’s top legislative achievement. In June 2013, the Obama executive suspended the law’s employer mandate covering the majority of Americans with health insurance based upon a presumed need for “transitional flexibility” in implementing new laws, and amended it further in 2014. For the rest of Americans covered by individual insurance, the administration allowed those who thought their new premiums were too much higher than their old private ones to claim a “hardship” exemption from what was an original purpose of the new law, making unacceptably low “garbage” coverage offered by the old private plans illegal. Another decision allowed previously banned supplemental plans to cover the higher deductibles forced by Obamacare.
As Brian Callanan has noted, this history provides precedent for a new president who could take the fact that almost everyone by that time could claim the “hardship” that rates were higher than they paid previously and grant everyone under the individual mandate an exemption. As under the Obama exemption, all insured would need to do is self-certify that they “consider other available policies unaffordable.” Or the new president could exempt all without any need for certification as the hardship obviously affected everyone. As far as the employer mandate, the law does not allow for exemptions but if it could be delayed temporarily, why not every year or even indefinitely? Or the new president could adopt the Obama Treasury Secretary’s claimed authority to formulate tax policy by ruling that Obamacare’s employer procedures were too cumbersome to implement in a first year. The new Treasury secretary could rule the whole employer mandate was too complex to implement at any time. He could say that no penalties would be assessed against any business that certified that it could not comply with the mandate without sacrificing jobs or curtailing hours worked.
That would be the end of Obamacare. If that seems too bold, a less draconian solution would simply create a new “lead” category to add to the bronze, silver and gold that would allow insurance companies to offer whatever plans they and their customers thought was not a hardship for them. If Mr. Obama’s friends take the new Republican president to court to overturn his creative administrative actions, he could tell them to take it up with Andy Jackson.
The only effective way to control power is to do it as the founders did by separating it. The result will be overlapping authority, power shifting to different institutions over time, and often compromised policy. But that is why the founders gave the national government only a limited number of things to do. It worked reasonably until progressivism centralized power in Washington and ended up tying national policy in red tape. Today, the nation’s top public administration professor, Paul Light of New York University, concludes its suffocating bureaucratization does not allow the Feds to faithfully execute its laws.
Abstract claims of unconstitutionality, confiscatory taxes, destructive policy, fiscal or moral bankruptcy, excessive bureaucracy and the rest cannot be solved simply by claiming rights. Only politics can make change. The progressive plan seems to have tied itself in knots but a modern alternative committed to the original idea of a limited national government and returning powers to the states and people are still inchoate. But a new Senate and president could change things dramatically, utilizing the real Constitution in the way its founders expected it to work.
Donald Devine is senior scholar at the Fund for American Studies and was Ronald Reagan’s director of the Office of Personnel Management during his first term.