President Obama's state of the union pledge to "act with or without Congress" marks
a milestone in presidential usurpation of Congressional authority. Most modern
presidents have used executive orders to change and even create laws without
Congressional approval. However President Obama is unusually brazen, in that
most Presidents do not brag about their plans to rule by executive order in
state of the union speeches.
Sadly, his pledge to use his pen to implement laws and polices without the
consent of Congress not only received thunderous applause from representatives
of the president's party, some representatives have even pledged to help Obama
get around Congress by providing him with ideas for executive orders. The Constitution's
authors would be horrified to see legislators actively adding and abetting
a president taking power away from the legislature.
Executive orders are perfectly legitimate and even necessary if, in the words
of leading Constitutional Scholar Judge Andrew Napolitano, they ".... guide
the executive branch on how to enforce a law or...complement and supplement
what Congress has already done." The problem is that most modern presidents
have abused this power to issue orders that, as Judge Napolitano puts it, "restates
federal law, or contradicts federal law, or does the opposite of what the federal
law is supposed to do."
Political opponents of the president rightly condemned Obama for disregarding
the Constitution. However, it was not that long ago that many of the same politicians
where labeling as "unpatriotic" or worse anyone who dared question President
Bush's assertions the he had the "inherent" authority to launch wars, spy on
Americans, and even indefinitely detain American citizens.
Partisan considerations also make some members of the opposition party hesitate
to reign in the president. These members are reluctant to set a precedent of "tying
the president's hands" that could be used against a future president of their
own party.
The concentration of power in the office of the president is yet one more
negative consequence of our interventionist foreign policy. A foreign policy
based on interventionism requires a strong and energetic executive, unfettered
by Constitutional niceties such as waiting for Congress to pass laws or declare
war. So it simply was natural, as America abandoned the traditional foreign
policy of non-interventionism, for presidents to act "without waiting for Congress." After
all, the president is "commander-in-chief" and he needs to protect "national
security," they argued. Once it became accepted practice for the president
to disregard Congress in foreign affairs, it was only a matter of time before
presidents would begin usurping Congressional authority in domestic matters.
It should not be surprising that some of the biggest promoters of an "energetic" executive
are the neoconservatives. They are also enthusiastic promoters of the warfare
state. Sadly, they have misled many constitutionalists into believing that
one can consistently support unchecked presidential authority in foreign policy,
but limit presidential authority in domestic matters. Until it is fully understood
that virtually limitless presidential authority in foreign affairs cannot coexist
with strict limits on Presidential authority in domestic matters, we will never
limit the power of the Presidency.
The people must also insist that politicians stop viewing issues concerning
the separation of powers through a partisan lens and instead be willing to
act against any president who exceeds his constitutional limitations. Thankfully
we have scholars such as Louis Fisher, who has just published an important
new book on presidential power, to help us better understand the Founders'
intent with regard to separation of powers. The key to achieving this goal
is to make sure the people understand that any president of any party who would
exceed constitutional limitations is a threat to liberty, and any member of
Congress who ignores or facilitates presidential usurpation is being derelict
in his Constitutional duty.
