Ranking Member, Senate Committee on the Judiciary
Unconstitutional Power Grabs
Thursday, January 26, 2012
I addressed the Senate recently on President Obama’s so called “recess” appointments when the Senate was not in fact in recess. I described at length why this is an outrageous and unconstitutional power grab.
However, President Obama’s decision to bypass the constitutional advice and consent of the Senate is not an isolated incident. It is merely the latest escalation in a pattern of contempt for the elected representatives of the American people and the constitutional separation of powers. This has become more apparent since the last election when public opinion turned against the direction the country was heading. When the President’s party had overwhelming control of both houses of Congress, he was able to pursue his agenda with only the slightest lip service to the objections of congressional Republicans and the millions of Americans whose views they represented. The President could govern more like a prime minister in a European parliament, where the leader of the party in power dictates the policy to be rubber stamped by the legislature. That’s no longer the case.
In 2010, there was a tremendous voter backlash against both the style and substance of the President’s agenda. A groundswell of Americans became convinced that their government was out of touch and they demanded to be heard. The President’s party in the Senate is now well below the supermajority necessary to pass legislation without consulting the minority party. Moreover, there is now a new majority in the House of Representatives trying to chart a new course based on the concerns so many voters expressed in the last election.
Rather than accept the message of the 2010 election, and faced with a Congress that is no longer a rubber stamp, the President has decided that he doesn’t need Congress at all. In fact, he’s said as much. In October, upset that Congress would not pass his latest stimulus bill exactly as he proposed, President Obama launched a media campaign around the tag line, “We Can’t Wait for Congress.” Under this banner, he has announced “executive actions” for everything from mortgage and student loan relief, summer jobs for youth, and new fuel economy standards.
A president being frustrated with Congress is nothing new. What’s more remarkable is the notion that the President will act independently of Congress. “Where they won’t act, I will,” he said.
Article I, Section 1 of the Constitution of the United States says, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” Having had their rights violated by a King, our Founding Fathers intentionally put the power to make laws in the branch of government that is most directly accountable to the citizens. Under our Constitution, the President’s role is not to make policy unilaterally, but to, “take Care that the Laws be faithfully executed.”
Some might say that the whole “We Can’t Wait” campaign is just harmless political rhetoric. It would be bad enough if the President were just kidding when he implies that he is usurping legislative powers – the legislative powers vested in the duly elected representatives of the citizens of the fifty states. However, after this latest power grab, there can be no doubt that he is completely serious.
This disregard for the constitutional role of Congress didn’t start with President Obama’s “We Can’t Wait for Congress Campaign” either. An early indicator of actions to come was his controversial appointment of several new so called “Czars”. The President is well within his rights to choose advisors, which is what these positions in the past were supposed to be. However, it became clear that many of President Obama’s new high level Czars, like the climate czar for instance, were involved in crafting regulations and other roles normally reserved for Senate-confirmed officials.
Another example of President Obama disregarding Congress is his administration’s unilateral pursuit of climate change regulations. The House and Senate have considered various proposals to regulate greenhouse gas emissions, but these have proved controversial. When the climate legislation backed by President Obama could not achieve sufficient support to pass Congress, the administration announced that it would go ahead anyway. While a Supreme Court ruling opened the door to that possibility, the fact that Congress specifically did not authorize such regulations should have given the administration pause.
In a similar move, when the DREAM Act as currently written was unable to secure sufficient support in Congress to pass, an Immigration and Customs Enforcement memorandum appeared calling for immigration laws to be enforced so as to bring about the same ends as the proposed legislation. Congress also rejected the “card check” bill supported by President Obama to eliminate secret ballot elections for union members. Sure enough, the National Labor Relations Board proposed a rule providing for snap elections, which would achieve the same goal of giving union bosses an upper hand in union elections.
The President’s “Race to the Top” education program is another significant overreach. Congress bears responsibility for writing a $5 billion check to the Secretary of Education in the first stimulus bill with minimal guidelines attached. However, the administration blew past even those broad guidelines to implement an unprecedented federal intervention into state education policy. The resulting program offered the possibility of big grants to cash strapped states, provided they first changed state laws to implement specific policies favored by the Secretary of Education. Most states, like Iowa, implemented the Secretary’s preferred policies and applied for the funds, yet never saw a dime in return. In a similar move, the President announced that he would grant waivers to states for relief from the requirements of the No Child Left Behind Act. The catch is that states will have to adopt key components of his education reform agenda in order to get a waiver. This is despite the fact that Congress is currently considering legislation to update federal education policy and may not adopt all aspects of the President’s proposal. Moreover, current law allows for waiving existing requirements on a case-by-case basis, but does not authorize the administration to add new requirements in return.
So far, I’ve mostly focused on areas where the President has acted without authority from Congress. On the other hand, when Congress has passed legislation the President doesn’t entirely agree with, he has announced, while signing them into law, that he won’t implement the parts he doesn’t like. During the 2008 campaign, candidate Obama said that he was “not going to use signing statements as a way of doing an end run around Congress.” However, he has done just that on numerous occasions. Moreover, he has made clear his intention to not enforce certain laws that are already on the books, such as federal anti-drug laws. The President’s Attorney General also decided not to defend a legal challenge to the Defense of Marriage Act. Again, the Constitution makes clear that it is the President’s responsibility to “take Care that the Laws be faithfully executed” whether the current occupant of the White House agrees with those laws or not.
I can think of plenty more examples of executive overreach. It would be much harder to think of examples where Congress has successfully fought off an executive power grab. In fact, the more President Obama has gotten away with these little power grabs, the bolder he has become. Congress has not been effective in fighting this executive encroachment because Congress is not of one mind. Members of the President’s party are understandably reluctant to oppose him publicly. However, with this latest escalation, the time has come for Congress, on a bipartisan basis, to say “Enough is enough.” I would ask my colleagues on the other side of the aisle to think hard about the precedent being set for the next Republican president. Once the genie is out of the bottle, you are not likely to be able to get it back in.
For those who are tempted to sympathize with the President when he justifies bypassing Congress because of “obstructionism”, I would return to the fact that our system of checks and balances between the different branches of government did not come about by accident. The philosophy underpinning the American Revolution, as expressed in the Declaration of Independence, is based on “unalienable Rights” and the principle “That to secure these Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” As a result, our government was intentionally structured to provide maximum protection to individual rights. In our Constitution, that principle takes precedent over getting things done. In my previous remarks, I quoted the Father of the Constitution, James Madison, in Federalist 51, “separate and distinct exercise of the different powers of government” is “essential to the preservation of liberty.” Madison was concerned about a temporary majority faction assuming full control of the government and acting tyrannically toward those Americans in the minority.
By contrast, the French Revolution was inspired by the philosophy of Jean-Jacques Rousseau, who wrote that claims of natural rights must be abandoned in favor of submission to the authority of the “general will” of the people as a whole. The application of this philosophy tends to result in power centralized in a ruling elite that claims a unique ability to interpret the “general will”. This centralization of power allows for a more active government. That may be attractive to those whose main concern is making the trains run on time. On the other hand, the single-minded pursuit of a common purpose at the expense of individual rights has led to some of history’s worst tyrannies. Our system of separation of powers, federalism, and checks and balances, designed to protect individual rights, results in a more deliberative form of government. This can be frustrating. It means that the President cannot expect Congress to just pass his proposals without reading them. Still, these features of our Constitution perform an important role in preventing one faction of Americans from dominating another.
President Obama isn’t the first to become frustrated with the checks and balances built into our constitutional system. In fact, at the dawn of the 20th century, an entire philosophical movement developed around the idea that our Constitution had become outmoded -- that its focus on individual rights was no longer applicable to the modern age. I mentioned in my previous remarks about the President’s unconstitutional appointments that Theodore Roosevelt started to change the way Presidents viewed power. It’s worth noting that President Obama recently gave a speech in Osawatomie, Kansas, the site of Teddy Roosevelt’s famous “New Nationalism” speech. That speech marked the beginning of Roosevelt’s break with the incumbent Republican president, William Howard Taft. Roosevelt then went on to challenge Taft in the 1912 election on the Progressive Party ticket.
In that speech, which President Obama commemorated, Roosevelt described his New Nationalism as “…impatient of the impotence which springs from overdivision of governmental powers.” He went on to say that, “This New Nationalism regards the executive power as the steward of the public welfare.” An even more explicit description of the progressive view of the Constitution was written by the ultimate winner of the 1912 presidential election, Woodrow Wilson. In his Constitutional Government, Wilson wrote, “The makers of the Constitution constructed the federal government upon a theory of checks and balances which was meant to limit the operation of each part and allow to no single part of organ of it a dominating force; but no government can be successfully conducted upon so mechanical a theory. Leadership and control must be lodged somewhere…” He then goes on to describe at length why he feels the President is where this “leadership and control” should ultimately be lodged.
This philosophy advocates a concentration of power in order to more effectively act on behalf of the People, at the expense of representing the diverse views of individual Americans. It is contrary to the founding principles of our nation and foreign to the realities of American civic life. We are a large nation with tremendous variety in both geography and people. No one man can claim to speak on behalf of all Americans, which is why we have a Congress in the first place. The voices of all Americans deserve to be heard through their elected representatives and the rights of each American must be respected. As the state motto of Iowa goes, “Our liberties we prize, and our rights we will maintain.” We must not let short term partisan interests trump those enduring constitutional principles. The Senate, and the whole Congress, has a solemn duty to defend its constitutional role.