President Obama governs by executive fiat, defacto legislation and ignores separation of powers
As 2014 comes to a close, it’s worth considering the Obama administration legacy as we head into 2015.
Certainly, there were scandals. The IRS played hide and seek with documents regarding improper targeting of conservative and Tea Party groups.
The response to the Ebola outbreak was clumsy, and helped induce panic. Our foreign policy is in tatters.
Yet the most long-lasting damage may be the Obama administration’s cavalier attitude towards constitutional separation of powers.
Three areas of the Obama administration going it alone stand out: Immigration, Obamacare and the environment. Immigration is perhaps the most dramatic example.
Legalizing and eventually providing a path to citizenship for the estimated 10-12 million illegal immigrants is a top administration priority. But that priority hit a roadblock in the form of the Republican-controlled House of Representatives, and soon, Senate. Out of frustration, Obama has taken unilateral action to evade the immigration laws.
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Prior to 2014, the administration already had imposed non-repatriation policies at the border, and established the “mini-dream” policy, precluding deportation of people who were brought to the country illegally as minors and met certain other criteria. These policies, however, only applied to a relatively small portion of the total illegal immigrant population. So more was needed, and that “more” would not be coming from Congress.
Accordingly, soon after the 2014 midterm elections, Obama announced executive action to extend legalization for up to 5 million more immigrants, focusing on those who were in the country illegally but whose children were U.S. citizens by virtue of their birth here. Nearly two dozen times in the past Obama had stated publicly that he could not constitutionally undertake such actions, but he did it anyway.
This immigration end-run creates a class of people who effectively are exempt from the immigration laws, without Congress ever having recognized such an exemption. It is not prosecutorial discretion but a usurpation of legislative power.
There also have been dozens of unilateral actions as to Obamacare legislative requirements, including individual and employer mandate delays, and waivers of certain fees for unions. Of particular note, the IRS passed rules allowing purchasers on the federal exchanges to obtain subsidies the legislation reserves for state exchanges.
This issue was of sufficient importance that the Supreme Court unexpectedly agreed to hear the case without there even being a split in the circuits. These changes were undertaken not as a proper exercise of discretion as to how best to implement the law as written, but to push much of the pain of the law beyond the 2014 elections.
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As to the environment, EPA regulatory authority has been used expansively to scale-back the coal industry and shutter coal burning power plants. Those regulations have cost Democrats politically in states like West Virginia and Kentucky, but the damage to the coal industry may be irreversible.
Further, the administration has moved to implement national carbon-emission reductions even though Congress has not approved such a national reworking of our energy policy. Even The New York Times notes that President Obama “could leave office with the most aggressive, far-reaching environmental legacy of any occupant of the White House. Yet it is very possible that not a single major environmental law will have passed during his two terms in Washington.”
The exploitation of environmental regulatory authority not to implement laws, but to create a regulatory equivalent of legislation, is an abuse of executive discretion. At every level, the Obama administration has signaled that going it alone is the only way to get things done.
But that is not how our constitutional system is set up. The Framers understood the threat of an overreaching executive who wants to be king not president.
Midterm election exit polls confirm other polling showing trust in government near historic lows. Dissatisfaction with government is the top non-economic public concern.
The Obama administration’s relentless expansion of executive power through extra-constitutional means only further fuels the public’s distrust of government. If 2014 was a referendum on Obama, 2016 may be a referendum on whether the public wants the federal government, particularly the president, to live within constitutional boundaries.
Will our next president be a king, queen or a constitutionally-limited president? That is the question for 2016.
William A. Jacobson is clinical professor at Cornell Law School and publisher of Legal Insurrection Blog.
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