Jonathan Turley, no foe of President Obama or his policies, is concerned about the president’s extraordinarily expansive view of executive discretion:
The United States is at a constitutional tipping point: The rise of an uber presidency unchecked by the other two branches.
This massive shift of authority threatens the stability and functionality of our tripartite system of checks and balances. To be sure, it did not begin with the Obama administration. The trend has existed for decades, and President George W. Bush showed equal contempt for the separation of powers. However, it has accelerated at an alarming rate under Obama. Of perhaps greater concern is the fact that the other two branches appear passive, if not inert, in the face of expanding executive power.
He produces a lengthy list of examples:
- The heart of the healthcare law was a set of minimum requirements for insurance plans. After Obama was embarrassed by the cancellations of millions of nonconforming plans (when he had said no one would lose a plan they had and liked), he created first one temporary exemption and then, last week, another, adding two years to the compliance deadline set by law.
- On his own authority, Obama also chose other dates for compliance with the employer mandate.
- Congress ended a subsidy for members of Congress and their staffs so that they would obtain insurance under the ACA on the same terms as other citizens. Obama ordered that the same subsidies would continue, in defiance of the law.
- He asked Congress to change the law to exempt certain classes of immigrants — particularly children — who are in the U.S. illegally from deportation. Congress refused to pass the so-called Dream Act, but Obama proceeded to order agencies to effectively guarantee the very same changes.
- The administration ordered all U.S. attorneys to stop prosecuting nonviolent drug crime defendants who would be subject to what Atty. Gen. Eric H. Holder Jr. called draconian mandatory minimum sentences. The new rule effectively negates sentencing provisions set by Congress.
- Obama opposed the No Child Left Behind Act and in effect nullified it through waivers of his own making.
- For years, the Wire Act was interpreted to mean that Internet gambling was prohibited, which some states and businesses opposed. The Obama administration declared the act would now be treated as having the inverse meaning.
By far the least traumatic solution to the dangers in a too-expansive use of executive power would have been for the president not to have done it. Unfortunately, that’s a jinn that cannot be returned to the bottle and unless curbed we should expect future presidents to expand their power even farther. That has, sadly, been the history of the American republic.
In my opinion the second least bad alternative would be for the courts to automatically grant standing to the Congress in any case involving executive discretion. It seems obvious to me that the Congress should have such standing, either both houses together or either house severally, I honestly can’t see how a separation of powers could work in the absence of such standing, and I hope that one of my better-informed readers could brief me on the history of the Court’s present position on Congressional standing.
Failing that the only alternative open to the Congress would be a much lower threshold of what constitutes an impeachable offense.
It seems to me that those are the alternatives from which we must choose. Either we must accept an executive branch that enforces the law or fails to enforce it at its complete discretion or differences of opinion between the executive and Congress over what is necessary and proper must be considered an impeachable offense. That’s a Hobson’s choice.