OVER THE LAST 250 YEARS there have been four American
constitutions, each giving us a very different form of government.
The first constitution was that of the pre-Revolution Crown
colonies, under which royal governors dominated the elected
assemblies. These were swept aside by the American Revolution, and
(after the interregnum of the Articles of Confederation) the
Framers, at their convention in the summer of 1787, produced the
second constitution, one of congressional government, with power
centered in the Senate and House of Representatives. The seeds of
the third constitution were found in the second constitution and
emerged over the Republic’s first 50 years, as the president became
popularly elected and his office emerged in the form of the modern
executive: commanding, decisive, and possessing all the authority
of the only person elected by the nation at large.
With Obama, we have now entered into a fourth constitution, one
of strong presidential government, in which the president has
slipped off many of the constraints of the third constitution’s
separation of powers. He makes and unmakes laws without the consent
of Congress and spends billions to reward his friends. His power
exceeds that of any American ruler since the Revolution. He is
rex quondam, rex futurus—the once and future king.
The election next month is a choice between two very different
ideas about the role of the state, between free markets and crony
capitalism, between fiscal prudence and financial profligacy,
between a forceful foreign policy and a fainéant one. It is also a
referendum on which constitution is to govern us, and what we
decide will determine what kind of country we will have for many
decades to come.
The President’s Legislative Powers
ARTICLE I, SECTION 1 OF THE CONSTITUTION bars presidential
law-making by specifying that “[a]ll legislative Powers herein
granted shall be vested in a Congress of the United States.”
Nevertheless, Congress has quietly acquiesced to the expansion of
presidential power through a succession of laws which, drafted in
the broadest terms, delegate the details of their implementation to
the executive branch, which can be seen as a grant of legislative
powers to the president.
The Dodd-Frank financial regulation statute provides a striking
example of this abdication. The act created two new federal
agencies, the Financial Stability Oversight Council and the
Consumer Financial Protection Bureau, each with enormous and
ill-defined discretion over a large sector of the American economy.
The CFPB is empowered to proscribe “unfair, deceptive or abusive”
consumer loans and “predatory” lending, open-ended standards that
place little discernible limits on the regulators. The CFPB is also
immunized from Congress’s power of the purse, because the agency
has a claim to more than $400 million from the Federal Reserve each
year and because Congress is prohibited from reviewing that budget.
Just what these agencies will do depends on who is appointed to run
them, and that decision lies with the president.
The controversy over the CFPB was heightened by the manner in
which it got off the ground. The agency could not begin its work
until its director was appointed. This would have required Senate
confirmation, however, and Republicans filibustered the
appointment. To get around this, Obama made a “recess” appointment
of Richard Cordray in January 2012, at a time when the Senate,
according to its rules, was not in recess. Instead, it was in a
“pro forma” session, which means that senators appear periodically
for a few minutes to bang the gavel. Before 2012, this tactic had
worked for five years to prevent two administrations from making an
appointment without Senate confirmation, and Cordray’s recess
appointment was therefore a precedent-setting expansion of
executive power.
The courts have been complicit in the grant of presidential
legislative powers, by stripping Article I, Section 1 of any
discernible content. The section should prevent Congress from
delegating legislative powers to the president, but this
non-delegation doctrine was last heard when the Supreme Court
struck down the National Recovery Act in 1935. It is unlikely to
fetter future presidents.
The President’s Non-Reviewable Veto Power
THE CONSTITUTION gives the president the power to veto any bill,
subject to a two-thirds override by both houses of Congress. In
recent years, however, presidents have enjoyed an expanded,
non-reviewable veto power. They might simply decide not to enforce
a law.
Presidents have frequently issued signing statements in which,
without vetoing a bill, they declare that they do not consider
themselves bound by some of its provisions. In the past, however,
they have always asserted a constitutional basis for doing so, and
this was not a shocking exercise of executive power. Were Congress
to pass a law abridging the right to practice one’s religion, for
example, no one would expect the president to enforce it while
waiting for the Supreme Court to strike it down.
Obama has now expanded the non-reviewable veto power in two
ways. First, he has announced that he won’t defend laws passed by
prior Congresses. In 1996, Congress enacted the Defense of Marriage
Act, which defines marriage, for federal purposes, as being between
a man and a woman. The act was passed by large majorities in both
houses of Congress and signed into law by Bill Clinton. In 2011
Obama’s Department of Justice announced that it regarded the law as
unconstitutional and would no longer defend it in court. Because
DOMA is the subject of ongoing lawsuits, this comes down to an
effort to veto a law which Obama lacks the votes in Congress to
repeal.
Second, Obama has asserted the right not to enforce laws that
are constitutionally unobjectionable, simply as a matter of
prosecutorial discretion. Congress refused to pass Obama’s DREAM
Act, which would have given conditional permanent residency to some
illegal immigrants, and so he issued an executive order that they
not be deported. The new program of formalized “Deferred Action for
Childhood Arrivals” could allow an estimated 1. 7 million young
undocumented immigrants to live and work in the United States
Most recently, the administration released a policy directive
that allows states to receive a waiver for the work requirements
that were at the heart of the 1996 welfare reform law, passed after
a lengthy debate over how to get people off welfare. The act’s
authors foresaw the possibility that subsequent administrations
might seek to gut its workfare requirements, and they therefore
made them non-waivable. Administration officials say only waivers
that improve outcomes will be approved, and Utah’s GOP governor has
defended his state’s request for one. That said, whatever one
thinks of waivers, they mark a remarkable assertion of presidential
power. The non-reviewable veto trenched on both the spirit and the
letter of the major legislative initiative of the Clinton
presidency.
The executive obviously possesses a degree of discretion in the
manner in which it enforces laws, but if this permits a president
to disregard them in the face of congressional opposition, one
might reasonably ask whether any limits can be set to the
nonreviewable veto power. The president’s assertion that he can
decide not to enforce a properly enacted and constitutionally
unassailable statute violates both the vesting power of Article I,
Section 1, and the presidential veto power of Article I, Section 7.
(Why veto a bill, and risk an override by Congress, if a president
can simply decide not to enforce it?) It also violates Article II,
Section 3 of the Constitution, which enjoins the president to “take
Care that the Laws be faithfully executed,” to say nothing of the
separation of powers itself. As such, the non-reviewable veto is
constitutionally suspect, but if this is a breach, it is one
without a legal remedy, since there is no sanction for failing to
enforce a law short of an exceedingly improbable impeachment. Only
a political remedy exists, in the requirement of a referendum on
the administration in a popular election.
The President’s Spending Power
THE PRINCIPLE that taxing and spending authority is vested in
the legislature was one of Parliament’s hard-won victories in
17th-century English constitutional history. In recent years,
however, the power of the purse has passed to the president,
particularly under the 2009 stimulus package, which appropriated
$787 billion and was the source for the ill-fated $500 million
Solyndra loan guarantee. The Solyndra guarantee was not made out of
the blue, but only after frequent meetings between Solyndra
executives and White House officials, who touted the project as an
example of the president’s support for green energy.
The 2009 GM-Chrysler bailout was an especially remarkable
example of the presidential spending power. More than $80 billion
in TARP funds was used to bail out the two car manufacturers, even
though this unconstitutionally contravened the appropriation
statute. Congress had authorized that the TARP monies be spent on
“financial institutions” such as banks, savings and loan
associations, credit unions, and insurance companies—not on car
companies. Bush had sought approval for the automobile bailout from
Congress but had failed to overcome a Senate filibuster
The New Monarchists
ONE MIGHT HAVE EXPECTED the media to take notice of the
expansion of presidential power under Obama. With far less cause,
they were quick to decry the “imperial presidency” of George W.
Bush. Now, however, the earnest republicans in the media and the
Democrats have discovered the joys of monarchism. They move
seamlessly from the party to the media (George Stephanopoulos,
Chris Matthews), from the White House to a lucrative consultancy
job (David Axelrod), from the Justice Department to a
$4-million-a-year job at Fannie Mae (Jamie Gorelick). They are the
pampered fops at the feet of the king, presidential courtiers who
will not have to wait for the next world to see their loyalty
rewarded. Their motto is “We look after our own!”
For the monarch’s loyal subjects: power, preferment, privilege;
for the misguided and disloyal subjects: the full force of the law.
We have given you Chevy Volts, and you persist in driving Ford
Explorers? Very well, our EPA will mandate fuel-efficiency
standards to take away the keys to your gas guzzlers. Your every
thought and word reveals deep-seated racism? Very well, we will
audit you and sue you and subject you to all the scorn that the
media can direct your way. Lèse-majesté has no place under the
fourth American constitution, any more than it did under the
first.
And what of Congress? Its inspectors general have been taught
not to make waves, lest they be fired in the humiliating manner
that Gerald Walpin was dismissed when he questioned payoffs to the
president’s cronies. Congressmen still control the purse strings,
but in a showdown with the president can be expected to blink. They
do serve one purpose, however. Without them, how could we have a
State of the Union Address?
