The traditional Chinese New Year celebration kicks off on Friday. We are ringing in the Year of the Horse. But President Barack Obama has beaten the Chinese lunar calendar to the punch. He used Tuesday evening’s State of the Union address to usher in what he called a “year of action.” Obama’s top aides had been hinting for days that the president would express the intention to use executive orders to go around a Congress unwilling to pass his agenda. He made good on this threat.
“America does not stand still—and neither will I,” said the president in promising to take steps whenever possible to advance his domestic policy agenda “without legislation.” One of the first moves he plans to make is issuing an executive order that will increase the minimum wage of federal contract workers, as well as an order which will establish a retirement plan for low-wage workers. Political commentators have rightly focused on whether or not it is appropriate for the chief executive, constitutionally tasked with enforcing the laws, to make his own by decree. But they are missing a key part of the equation.
In a panel discussion held earlier this week over what we can expect from the coming year in politics, Hillsdale College Professor Ronald J. Pestritto explained how recent rule changes in the Senate paved the way for more action at the executive level. The Democrats’ so-called “nuclear” move allows them to clear federal judicial nominees and other presidential appointees with only a simple majority instead of the 60-vote supermajority that has been the conventional standard for almost 40 years. The Democrats thus pushed aside any threat of a filibuster from the Republicans.
Traditionally, questions of executive—and bureaucratic—authority are settled in the D.C. Circuit Court of Appeals, which Pestritto calls the “Supreme Court of administrative law cases.” The Court of Appeals hears most of the cases concerning what presidential agencies can and can’t do. Because the courts have tended to side with presidential authority, most of these agencies today have powers that, according to the Constitution, should be reserved for Congress.
There are 11 seats on the court. Until recently, there were four judges who had been appointed by Republican presidents, four who had been appointed by Democrats, and three vacancies. Over Republican objections that the Circuit Court does not have a heavy enough caseload to require all the seats to be filled, Obama made his nominations to “complete the court.” The last of his picks was confirmed on January 13, but none of them would have gone through without the Senate rule change. The new balance of the court is seven Democrats to four Republicans. Four of the sitting members of the court are Obama’s own appointees, more than those that remain from any other president.
So it all comes down to this: The president is looking to expand his powers, and the court that determines whether or not his actions are kosher is now packed in a way that would make FDR blush. It’s as if the Soviets had been allowed to pick the American goalie before the Miracle on Ice. We heard a bunch of moralistic rhetoric from Democrats claiming that Americans were tired of Republicans standing in the way of necessary action. But Harry Reid and his colleagues knew what they were actually up to.
Oh, and one more thing. The D.C. Circuit Court of Appeals is a traditional training ground for future Supreme Court justices. Behold, a pale horse. And its name, that sat on it, was the administrative state. Happy New Year, America.
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