Commentary Magazine


Topic: executive orders

Standing and Prosecutorial Discretion

There has been much talk of late, especially since President Obama’s speech last night, about how the new Republican congress can respond to his continual, indeed increasing, end runs around Congress’s power to make the laws. In almost so many words last night, he said to Congress, you didn’t reform immigration law so I will.

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There has been much talk of late, especially since President Obama’s speech last night, about how the new Republican congress can respond to his continual, indeed increasing, end runs around Congress’s power to make the laws. In almost so many words last night, he said to Congress, you didn’t reform immigration law so I will.

He used the common law principle of prosecutorial discretion—where the executive can choose what individual crimes to pursue and which to ignore—to do so. He was confident that the common law principle of standing—where an individual, corporation, or government body must have a personal or direct injury that he or it wants redressed in order to sue—would prevent the courts from interfering.

It’s clever lawyering if lousy politics.

The courts have long held that individual members of Congress cannot sue the president for ignoring the law.  It may get them a headline in tomorrow morning’s newspaper, which is what they are usually after anyway, but it won’t get them far in court.  Equally, prosecutorial discretion has always been used to allow prosecutors to choose strong cases to pursue, while letting weak ones go, or to prevent an injustice from occurring by pursuing the letter of the law.

But, as noted, both standing and prosecutorial discretion are largely common law principles, arising from centuries of court decisions on how justice should be done, guarded by the doctrine of stare decisis, which holds that settled principles of law should not be disturbed by the courts when deciding similar cases.

But statute trumps common law. It was common law that the age of majority was 21. But that didn’t prevent the states from making 18 the age at which, for instance, individuals could drink or marry without a parent’s permission or vote.  A constitutional amendment set the voting age at 18 nationwide.

So, while I am not a lawyer, I see no reason why the new Republican Congress could not pass a law granting itself standing to sue when it decides by majority vote that the President has trespassed on its power to make the law. Equally, it has the power to limit prosecutorial discretion to its traditional uses.

After all, President Obama was implicitly arguing in his speech last night that if Congress were to pass a law making, say, the transportation of widgets across a state line a felony, he would be free to order the Justice Department not to prosecute any cases under the Widget Law, effectively repealing it.

Defining standing and prosecutorial discretion by statute would prevent this usurpation of power.  Would President Obama veto such bills? Perhaps, but even with the mainstream media in look-a-squirrel overdrive, I think public pressure would force him to accept them.  If it didn’t, then a future president who thinks that James Madison is not just a dead white guy would.

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Obama’s Orders: Politics, Not Compassion

President Obama was at his rhetorical best Thursday night in making an eloquent case for his executive orders that allow five million illegal immigrants to avoid deportation. But his eloquence invoking compassion for immigrants was the worst kind of cynical game being used to justify an unprecedented presidential usurpation of power. Even if one accepted the arguments he employed on behalf of fixing our broken immigration system or being fair to illegals, it was all beside the point. The purpose of this exercise was to vastly expand the scope of presidential power while provoking a confrontation with Republicans. None of it had much to do with actually changing the system.

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President Obama was at his rhetorical best Thursday night in making an eloquent case for his executive orders that allow five million illegal immigrants to avoid deportation. But his eloquence invoking compassion for immigrants was the worst kind of cynical game being used to justify an unprecedented presidential usurpation of power. Even if one accepted the arguments he employed on behalf of fixing our broken immigration system or being fair to illegals, it was all beside the point. The purpose of this exercise was to vastly expand the scope of presidential power while provoking a confrontation with Republicans. None of it had much to do with actually changing the system.

There are good reasons to support changes in the system. The status of the 11 million illegals in this country needs to be resolved in some rational manner. The president is right to state that mass deportations are both unlikely and undesirable. Even if they violated the law, many, if not most of the illegals are not bad people and some of their stories should inspire compassion from Americans.

But by acting unilaterally rather than returning to the hard work of crafting a bipartisan compromise on immigration with the new Republican majorities in Congress, Obama showed that he had other motives besides his supposed passion for the illegals.

The president’s argument remains that he is being forced to act because House Republicans refused to pass the bipartisan compromise bill passed by the Senate. This is a specious appeal for four reasons.

The first is that even if the Senate bill deserved support, it is the prerogative of the Congress to pass laws. The president may advocate, lobby, cajole, threaten, or bargain with members to get his way. But if the executive branch fails to get the legislative branch to approve measures, it must accept the verdict and try again. Such a failure does not grant the president the right to usurp Congress.

Second, this is no emergency that required immediate action. Comparisons to the Emancipation Proclamation or wartime emergency measures are absurd. If it were a genuine emergency, Obama would have acted on it during his first two years in office when he had Democratic majorities in both houses of Congress and could have gotten any measure he liked. He might also have issued these orders at any time since then but instead waited until he was safely reelected and then for the midterms to be finished before acting.

Third, seen from the perspective of November 2014, it is clear the House was right not to pass the Senate bill. Though I did not think so at the time, the impulse to break up the measure and to pass border security legislation first and then and only then consider the future of the illegals already here was correct. Despite the president’s claims that the border is secure, last summer’s surge of illegals proved otherwise. Moreover, his boasts about the supposed decline in illegal immigration has little to do with the still shaky enforcement at the border and everything to do with the shaky economic recovery the president has presided over. Even worse, it is likely that today’s temporary amnesty—which may be reversed by the next president—will encourage another such surge. The same thing happened after President Reagan’s amnesty and that was not nearly so egregious as Obama’s and an attempt to clarify a law passed by Congress, not an end run around the Constitution.

Fourth, if, as he says, he wants a new bill, the only way to achieve any kind of reform would have been to work with the new Congress. Chances were admittedly slim for a new compromise but the president’s orders have now reduced it to zero. Hispanics and immigration-reform advocates applauding these orders should think about the fact that with a stroke of a pen, Obama has made it impossible for any Republican, no matter how committed to fixing the system, to vote for a new bill in the next two years. That is a greater setback for that cause than anything done by House Republicans in the past two years.

And that leads us to the most important conclusion to be drawn from the president’s move. It must be understood that this is as much a tactical political move as it an attempt to build a legacy as some of the president’s defenders claim.

By issuing his orders now in the wake of the Democrats’ drubbing in the midterms, Obama is attempting to take back the initiative from a victorious GOP. Despite the pious rhetoric he used about bipartisanship, his goal here is to goad a rightly furious Republican caucus into overreacting and to recreate the government shutdown confrontation of 2013 that he rightly believes himself to have won. In doing so, he hopes, with the help of a partisan liberal media that is already happily defending his measures and lambasting conservative anger, to gain an advantage in the latest episode of the pointless partisan squabbling that he has helped to engender.

By going outside of the constitutional order in this manner, the president has created a dangerous precedent that undermines both the rule of law and the concept of separation of powers. One may even agree with the substance of his ideas while also understanding that this is a radical action that puts more power in the hands of an already too-powerful executive branch.

But the fact that Democrats are already seeking to depict this struggle as one between a compassionate president and Republicans who want “ethnic cleansing” illustrates that this merely politics, not principle at play. Those who hoped they were electing a Congress to get things done were not wrong to think the new majorities had an opportunity to legislate. But President Obama has made that impossible by firing the first shot in a political war intended to further polarize the nation. Nothing could be more cynical or less high-minded.

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A Lawless Presidency Will Destroy Itself

There is no longer any doubt that perhaps within a matter of days, the president will issue executive orders that grant amnesty to up to 5 million illegal immigrants currently in the United States. While the administration is hoping the discussion that ensues will still be about the merits of immigration reform, they should understand that the president’s decision to use his executive authority to treat law enforcement as a function of his personal whim is bound to change the debate to one about an assault on constitutional principles. This means that rather than debating what can be done to stop him in the short term (the correct answer is not much), observers should be pondering the long-term effects of this move on both the future of immigration reform and the fortunes of our two political parties. The answers to both of these questions may not bring much comfort to the president and his supporters.

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There is no longer any doubt that perhaps within a matter of days, the president will issue executive orders that grant amnesty to up to 5 million illegal immigrants currently in the United States. While the administration is hoping the discussion that ensues will still be about the merits of immigration reform, they should understand that the president’s decision to use his executive authority to treat law enforcement as a function of his personal whim is bound to change the debate to one about an assault on constitutional principles. This means that rather than debating what can be done to stop him in the short term (the correct answer is not much), observers should be pondering the long-term effects of this move on both the future of immigration reform and the fortunes of our two political parties. The answers to both of these questions may not bring much comfort to the president and his supporters.

The GOP-controlled Congress doesn’t appear to have legislative options that won’t involve funding measures that can be portrayed as a new government shutdown. Though it would take presidential vetoes to kick off such a confrontation, with the help of a still docile mainstream media (see Grubergate), Republican leaders understand that this is a political trap they need to avoid. However, what Democrats who assume the mass amnesty will transform the political landscape in their favor and doom Republicans to perpetual defeat are ignoring is that the executive orders will change the terms of the debate about this issue. Though there may be no way of rescinding these orders while Obama remains in office, the real political trap may be the one that the president’s arrogant assumption of unprecedented personal power may be setting for his party.

As for the justification for this action, the notion that the president must act because Congress has not done so is utterly unconvincing even for those who support the cause of immigration reform.

The presence of an estimated 11 million illegals within our borders is a problem that must eventually be dealt with in a sensible manner. Mass deportations are neither feasible nor desirable, especially with those targeted by the president’s orders that may have children or other family members who are either citizens or legal residents. It is also true that many Republicans that supported the bipartisan immigration compromise that passed the Senate last year signed on to a process that would have given illegals a path, albeit a difficult one, to citizenship.

However, the need to address the problem doesn’t justify the president’s stand.

A measure that is imposed outside of the law that is not directly tied to border security and a reform of a broken immigration system does not solve the problem. If anything, as we saw last summer, such measures only encourage more illegal immigration. That surge of illegals proved that critics of the bipartisan bill were right and those of us (including me) who supported it were wrong. The border must be secured first and then and only then will it be possible to start sorting out those who are still here without permission. That was the approach favored by many in the House of Representatives last year and a new attempt at a fix to the problem should start there rather than trying to resurrect the Senate bill as the president demands.

That is why the administration’s narrative about the executive orders is simply false. Far from the president stepping in to provide a solution where Congress failed, what he is doing is making the problem worse, not better.

Far worse is the manner in which he is doing it.

It is, strictly speaking, within the president’s lawful authority to direct agencies operating under him to exercise prosecutorial discretion. But to do so on a mass scale isn’t merely unprecedented. It breaks new ground in the expansion of executive authority. As much as the president thinks the current law is inadequate to deal with the problem of illegal immigration, it is not up to him to unilaterally legislate a new solution. Only Congress may re-write the laws of the land. The idea of a president acting unilaterally to invalidate existing statutes in such a way as to change the status of millions of persons, however sympathetic we may be to their plight, places Obama outside the law and blaming Congress for inaction does not absolve him.

Nor can it be justified as falling within the executive’s right to act in a crisis.

There are circumstances when, usually in wartime, a crisis looms and broad presidential discretion is unavoidable. But as much as advocates for the illegals may trumpet their plight, this is not a ticking bomb that requires the normal constitutional order to be set aside. If majorities in both the House and the Senate could not be found to support a measure the president deemed important, he had the normal recourse of going to the people and asking them to elect a Congress that will do so. Unfortunately for those who claim that the president has no choice but to bypass Congress, we have just undergone such an election and the people’s answer was a resounding rebuff to the White House. The president may think it is in his interest to pretend as if the midterms should not determine his behavior in his final two years in office but it was he who said his policies were on the ballot. While there was an argument prior to November 4 that claimed that it was the GOP-controlled House that was thwarting public opinion on immigration, that claim disappeared in the Republican sweep.

That brings us to the long-term political consequences of this act.

While much has been made of the impact of amnesty on the Hispanic vote, with these orders the president is digging Democrats a hole that they will have difficulty climbing out of in the next two years.

Hispanics may be grateful for the temporary end of the deportations but it will not escape their notice that in doing so the president has ended any chance of immigration reform for the rest of his term. Nor will they be unaware that a GOP successor will invalidate amnesty with a stroke of the pen as easily as the president has enacted them. Republicans will rightly understand that there is no dealing with an administration that would rather go outside the law than first negotiate in good faith with a newly elected Congress on immigration. Nor can they be blamed for thinking any deal based on promises on border enforcement will be worthless with a president who thinks he has the right to simply order non-enforcement of the laws he doesn’t like.

Even more to the point, the orders will create a backlash among the rest of the electorate that always results when presidents begin to run afoul of both the law and public opinion. A lawless presidency is something that is, by definition, dysfunctional, and that is a term that has already defined Obama’s second term up until this point. Democrats who are counting on wild applause from their base should understand that just as Republicans learned that domination by their Tea Party wing undermines their electoral viability, they too should be wary of governing from the left.

The spectacle of mass amnesty without benefit of law will shock ordinary voters, including many who are Democrats or who think the immigration system should have been fixed. After the orders, responsibility for the failure to do so will rest on Obama, not the Republicans. What the president may be doing with these orders is to remind the voters that parties that grow too comfortable with exercising authority without benefit of law must be taught a lesson, one that will be paid for by his would-be Democratic successor in 2016. Rather than building his legacy, the president may actually be ensuring that his time in office is remembered more for his lack of respect for the rule of law than any actual accomplishments.

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Is Obama Conceding the Senate to the GOP?

For some advocates of more liberal immigration laws, the next month may be the most crucial in recent history. As Rep. Luis Gutierrez told the Washington Post, President Obama “is going to determine his legacy with the immigrant community in the next 30 days.” But while most members of the president’s party are ready to cheer executive orders bypassing Congress that will effectively legalize millions of illegal immigrants, those Democrats facing tough reelection fights know such moves will effectively decide the 2014 midterms.

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For some advocates of more liberal immigration laws, the next month may be the most crucial in recent history. As Rep. Luis Gutierrez told the Washington Post, President Obama “is going to determine his legacy with the immigrant community in the next 30 days.” But while most members of the president’s party are ready to cheer executive orders bypassing Congress that will effectively legalize millions of illegal immigrants, those Democrats facing tough reelection fights know such moves will effectively decide the 2014 midterms.

The president signaled back in June that he would use Congress’s failure to pass a comprehensive reform bill as an excuse to act on his own to address the problems in the immigration system. No details of the planned moves have yet been released but, as the Post reports, many on both the left and the right anticipate that the executive orders will indefinitely delay deportation for millions of illegal immigrants already in the United States and to provide green cards for relatives of U.S. citizens. That means that those illegals who have had children since arriving in the United States would effectively be granted legal status, raising the total of those granted a form of amnesty by these measures to encompass the vast majority of those here without permission.

While opponents of immigration reform blanched at any measure that would grant illegals the right to stay in the country, let alone a path to citizenship that a green card would give them, these unilateral moves are far worse than anything contained in the bipartisan bill that was passed by the Senate but blocked in the House. That bill put heavy penalties on the illegals and forced them to the back of the line for citizenship while also heavily reinforcing security at the border. But Obama’s unilateral plans really would be a form of amnesty without any real penalty or action to prevent another wave of illegal immigration.

This is terrible policy since, as this year’s crisis at the border demonstrated, even the president’s past statements about letting illegals stay has generated a massive influx of new migrants who believe that once they get across the border by any means they won’t be sent home even if they are caught. Enacting such a measure unilaterally at the whim of the president rather than through congressional action would further undermine the situation at the border as well as undermine the rule of law.

You don’t have to oppose immigration reform to recognize the problem here. All recent presidents have used executive orders and, in fairness to Obama, his predecessor George W. Bush used the tactic extensively when it suited him. But there is a difference between chipping away at the margins where presidential authority is already established and the White House simply governing on its own as if congressional approval of legislation is a mere technicality that can be waived if the president is really sure that justice is on his side.

The notion that the president has the right or even the duty to act on his own in this fashion because the House refused to pass an immigration bill turns the Constitution on its head. Acting in this manner would trash the checks and balances of the American system and establish an essentially anti-democratic precedent in which any president could flout the will of Congress and the Constitution if he didn’t get his way.

But the danger here is not just to the Constitution. If the president decides to push ahead with these measures in the months before the midterms, he may be effectively writing off the already diminishing odds of his party holding onto the Senate. For beleaguered red state Democratic incumbents like Mark Prior in Arkansas, Mary Landrieu in Louisiana, Kay Hagen in North Carolina, or even a purple state senator like New Hampshire’s Jeanne Shaheen, executive orders on immigration will feel like a stab in the back from the White House.

Concerns over illegal immigration were already a potent issue for Republicans in states where Hispanic voters—who are more sympathetic to undocumented immigrants—aren’t a major factor. But if the president does an end run around the Constitution in order to enforce his will on immigration it will be a disaster for endangered Democrats. Candidates like the aforementioned incumbents as well as Alison Grimes, who is providing the president’s party with one of its few shots at knocking off a Republican senator, are already trying to run away from Obama. Republicans are already favored to take control of the Senate. But with a few strokes of his pen, the president could ensure a far larger GOP majority next year than most pundits are now envisioning.

If Republicans play this right, they could ride Obama’s extra-constitutional behavior to a repeat of their 2010 landslide. But there’s also the chance that conservatives could play into the president’s hands and sabotage their chance to emerge in November with control of both Houses of Congress. In my next post, I’ll discuss the possibility that the president’s decision is actually a cynical effort to entice the GOP to try another futile government shutdown or impeachment.

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The President Versus the Constitution

Conflicts between the legislative and executive branches are as old as the republic. But in recent years, the growing power of the presidency has added new urgency to these issues. That’s the context of the decision of House Speaker John Boehner to sue the president for overstepping his authority. It’s also the backdrop to the interesting constitutional arguments in play in today’s U.S. Supreme Court decision on the president’s power to make recess appointments.

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Conflicts between the legislative and executive branches are as old as the republic. But in recent years, the growing power of the presidency has added new urgency to these issues. That’s the context of the decision of House Speaker John Boehner to sue the president for overstepping his authority. It’s also the backdrop to the interesting constitutional arguments in play in today’s U.S. Supreme Court decision on the president’s power to make recess appointments.

Democrats may have a point when they claim Boehner’s lawsuit is more of a stunt than a policy initiative. It is doubtful that the courts will force the president’s hand when it comes to bypassing Congress on immigration by selective enforcement of laws or by the use of executive orders when the House and the Senate fail to pass the legislation he wants. Even if the case does go forward, the odds are it will not be resolved until after President Obama leaves office in January 2017.

But Boehner is right to stand up for the Constitution and a system of checks and balances and against Obama’s notions of an imperial presidency that increasingly seem aimed at allowing him to govern alone without Congress.

Thus, the Supreme Court’s willingness in National Labor Relations Board v. Noel Canning to put some limits on the president’s power to make recess appointments is an encouraging sign that the march to one-person rule can be checked if not altogether halted.

As our John Steele Gordon noted earlier, the practice of allowing recess appointments, including those for vacancies that arise while Congress is in session, is not authorized by the Constitution but has become routine in the last century. While properly ruling that President Obama’s appointments to the National Labor Relations Board were illegal, the majority of the court sought to curb what it believes to be an excessive use of the practice. The decision held that congressional breaks of less than 10 days could not be interpreted as being sufficient to justify the president invoking his recess appointment power. That’s reasonable, but as Justice Antonin Scalia noted in his concurring opinion, by also saying that such appointments would be legal even if they came in the middle of an existing session, the court has read the law in such a way as to still leave the president far too much leeway to abuse the Constitution. The Constitution only authorizes the executive to make such an appointment when a vacancy comes up during an actual recess, not every such opening including ones that date back to times when Congress is in session.

As Scalia writes:

The notion that the Constitution empowers the President to make unilateral appointments every time the Senate takes a half-hour lunch break is so absurd as to be self-refuting. But that, in the majority’s view, is what the text authorizes.

Though he concurred with the majority that the NLRB appointments were illegal, Scalia rightly points out that such unilateral actions by the president could only be approved under extraordinary circumstances. But no such circumstances applied to this case or, for that matter, just about any other recess appointment made by any president in recent decades.

It should be remembered that the concept of recess appointments stems from the political realities of government in pre-20th century America. With a few exceptions during periods of national emergency, prior to the Great Depression Congress met for only a few months every year. Recesses then were not matters of a few days or weeks but several months. Even when a special session of Congress was called, travel in the horse-and-buggy era meant that it was simply impossible for the legislative branch to assemble quickly. Vacancies that arose during this period could, if forced to wait for the Senate to exercise its right to advise and consent to appointments, mean the government simply couldn’t function.

The old schedule in which a newly elected Congress would not meet until the December of the following year and new presidents not be inaugurated until the middle of March is consigned to the dustbin of history. But so, too, should the practice of allowing the president to simply use brief breaks in what is, for all intents and purposes, a nearly continuous congressional session to make appointments that the Senate has already effectively rejected.

Under the ruling in today’s case, so long as either congressional body is in the hands of the party not in control of the White House, recess appointments may be impossible since pro forma sessions will prevent the president from arguing, as Obama did, that the legislature really is not meeting. But, as John Steel Gordon points out, the president will still have a loophole that would allow him to effectively prorogue Congress like an 17th century English monarch.

All this points out the necessity for those who care about the Constitution—be they Republicans or Democrats—to stand up against a lawless presidency intent on one-person rule. Though Democrats may think they will hold the White House for the foreseeable future, they must consider that three years from now they may be faced with a Republican president. That president will, like all of his or her predecessors including Obama, probably suddenly find themselves in love with the idea of an imperial presidency that they disdained when someone of the other party was in power.

If this trend is allowed to continue unchecked and Obama’s predecessors are allowed to build on his precedent, then there is no telling how long the Constitution, as we know it, will survive. Presidents who enforce only the laws they like and use executive orders to make laws or make appointments the Congress has already rejected are little different from kings and queens.

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Obama’s Free Lunch One-Man Government

As the new NBC News/Wall Street Journal poll shows, confidence in President Obama’s ability to handle the economy or put the country on the right path continues to decline. But with more than two and a half years to go until his successor is chosen, the president is barreling ahead and attempting to implement his liberal agenda without congressional assent or much public support. This is a dubious strategy for any president, let alone one whose approval ratings are at all-time lows with little prospect that they will recover as he heads inevitably to the lame duck portion of his second term.

But in order to counteract these trends, the president has chosen what, at least in theory, are the most populist measures available to him. Hence, the “give America a raise” theme he introduced in his State of the Union speech in January that sought to pin a comeback on an effort to implement a hefty increase in the minimum wage. The follow-up comes this week as he builds on that sweeping measure with another designed to play to the same populist sentiment: changing the regulations about overtime payments. The law requires workers to be paid overtime for the hours they labor above the normal confines of the workweek. But the same laws have always exempted supervisors and management employees from these regulations. Obama wants to change that to allow more of those who run the workplace to benefit along with their employees with extra pay for extra hours.

But the truth about this proposal is that it is just as much an example of liberal economic snake oil as the minimum wage. Promising people a free lunch is always popular. But someone has to pay for it, and those who will be most affected by the president’s fiat will not be rich or powerful. That the president is shoving this down the throat of the country in a manner that undermines constitutional checks and balances that provide for accountability shows how desperate the White House has become for cheap and ultimately ephemeral political wins.

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As the new NBC News/Wall Street Journal poll shows, confidence in President Obama’s ability to handle the economy or put the country on the right path continues to decline. But with more than two and a half years to go until his successor is chosen, the president is barreling ahead and attempting to implement his liberal agenda without congressional assent or much public support. This is a dubious strategy for any president, let alone one whose approval ratings are at all-time lows with little prospect that they will recover as he heads inevitably to the lame duck portion of his second term.

But in order to counteract these trends, the president has chosen what, at least in theory, are the most populist measures available to him. Hence, the “give America a raise” theme he introduced in his State of the Union speech in January that sought to pin a comeback on an effort to implement a hefty increase in the minimum wage. The follow-up comes this week as he builds on that sweeping measure with another designed to play to the same populist sentiment: changing the regulations about overtime payments. The law requires workers to be paid overtime for the hours they labor above the normal confines of the workweek. But the same laws have always exempted supervisors and management employees from these regulations. Obama wants to change that to allow more of those who run the workplace to benefit along with their employees with extra pay for extra hours.

But the truth about this proposal is that it is just as much an example of liberal economic snake oil as the minimum wage. Promising people a free lunch is always popular. But someone has to pay for it, and those who will be most affected by the president’s fiat will not be rich or powerful. That the president is shoving this down the throat of the country in a manner that undermines constitutional checks and balances that provide for accountability shows how desperate the White House has become for cheap and ultimately ephemeral political wins.

Like the hike in the minimum wage, it sounds perfectly fair and seems to address the supposed problem of income inequality. Why shouldn’t government force profitable companies to fork over more of their profits to their workers? Such measures appeal to resentment about big business and sympathy for those struggling to get by in a struggling economy.

But while implementing the new overtime rules may direct more cash to the pockets of some deserving workers, it will also hurt the very companies the country is counting on to help pull us out of the economic malaise that America is currently stuck in and reduce employment and growth.

As was the case with his blithe admonition for all Americans to get a raise, President Obama speaks as if money can be pulled out of the air to give to those who are hard-working or deserving without anyone other than the undeserving rich being made to pay for it. But this sort of magical economic thinking seems more appropriate to a banana republic than the economic engine of the free world.

The basic facts of life are that the increases in pay will have to be paid for by cuts in overall employment and wages. That will mean companies—large and small—will be forced to cut back on their workforces or to think twice about expanding their businesses. Once the applause for the free lunches being delivered by the president dies down, many of those who think they will benefit from his largesse will soon realize that they have become victims of basic rules of economics. And unlike the president, they will not be able to disregard or pretend that the force of Obama’s personality and good intentions or the wave of his imperial hand can override the math.

It is also remarkable that a president who claims to be clued into technology and cutting edge innovation would choose to ignore the economic models that show a better and more productive way to reward supervisors. The high-tech companies Obama loves to laud have always preferred rewarding those ascending the ladder of company responsibility with stock and other benefits that get them invested in their employers’ success. Merely raising wages is not only economically unsound, it is also less likely to incentivize workers and supervisors to work hard and get ahead. For a president who claims to champion the middle class, this measure is profoundly counterintuitive and unlikely to help anyone.

Last, by directing the Labor Department to change regulations in order to force through this change rather than asking Congress to do so, the president is again trying to see how far he can go in governing by executive order. The answer is that he can do a great deal on his own and the low approval ratings for Congress ought to enable him to get away with it without paying much of a political price. But if he thinks the American people are longing for him to govern as a benevolent despot, he is misreading the poll numbers. As unpopular as Congress may be, voters tend take an equally dim view of the president and still expect him to govern within the bounds of the Constitution.

Promising the voters free lunches via executive orders may garner the president cheers from his political base. But it won’t save the Democrats in a midterm election that is increasingly looking as if ObamaCare will produce another GOP landslide.

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Can SCOTUS Curb Obama’s Imperial Presidency?

In June 2012 the U.S. Supreme Court had a chance to derail a vast expansion of government power by the Obama administration. But the court wound up ruling that ObamaCare was constitutional, even if the rationale provided by Chief Justice John Roberts for his deciding vote contradicted the opinions of the four liberal justices who joined with him to form a 5-4 majority as well as the arguments of the government on behalf of the law. But next week the Court will have yet another opportunity to brush back the president’s fast and loose approach to the Constitution when it will hear arguments concerning the president’s use of executive orders.

The case concerns the Environmental Protection Agency’s attempt to use existing laws in order to give itself the power to regulate emissions from power plants even though the legislation in question says nothing about the federal government having such a right. But more than the proper interpretation of the Clean Air Act will be at stake when the justices vote. As important as efforts to restrain the EPA’s desire to act as a benevolent dictator may be, the crucial point here is whether the president can, as he boasted he would do in his State of the Union address last month, ignore Congress and govern by the use of executive orders. If, as was the case with the court’s perplexing ObamaCare decision, the president gets a pass to do as he likes, the consequences may affect a wide range of topics beyond the contentious debate about the White House’s obsession with climate change.

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In June 2012 the U.S. Supreme Court had a chance to derail a vast expansion of government power by the Obama administration. But the court wound up ruling that ObamaCare was constitutional, even if the rationale provided by Chief Justice John Roberts for his deciding vote contradicted the opinions of the four liberal justices who joined with him to form a 5-4 majority as well as the arguments of the government on behalf of the law. But next week the Court will have yet another opportunity to brush back the president’s fast and loose approach to the Constitution when it will hear arguments concerning the president’s use of executive orders.

The case concerns the Environmental Protection Agency’s attempt to use existing laws in order to give itself the power to regulate emissions from power plants even though the legislation in question says nothing about the federal government having such a right. But more than the proper interpretation of the Clean Air Act will be at stake when the justices vote. As important as efforts to restrain the EPA’s desire to act as a benevolent dictator may be, the crucial point here is whether the president can, as he boasted he would do in his State of the Union address last month, ignore Congress and govern by the use of executive orders. If, as was the case with the court’s perplexing ObamaCare decision, the president gets a pass to do as he likes, the consequences may affect a wide range of topics beyond the contentious debate about the White House’s obsession with climate change.

As I noted here yesterday, the president has already begun making good on his SOTU pledge by announcing his intention to issue executive orders regulating emissions from large trucks that will mandate large-scale and expensive changes in that industry. But the EPA’s decision to give itself the power to regulate existing power plants makes that power grab look like small change.

As the New York Times explains, the details of the case are complicated and confusing. Suffice it to say that although the courts have upheld the EPA’s right to regulate carbon emissions, in order to be able to acquire the right to license all power plants for such activity it has been forced to twist the text of the Clean Air Act into a pretzel:

The agency said its regulation of tailpipe emissions also required regulation of emissions from stationary sources under two permitting programs. The Clean Air Act says those programs cover all sources that can annually emit 100 or 250 tons of the relevant pollutant, a threshold that works tolerably well for conventional air pollutants like lead and carbon monoxide. But that threshold, applied to greenhouse gases, which are emitted in far greater amounts, would require the regulation of millions of sources of pollution.

All sides agree that requiring permits at the statutory thresholds would impose enormous burdens. “We’d be regulating mom-and-pop stores,” said Peter S. Glaser, a lawyer for the Washington Legal Foundation, which filed a supporting brief opposing the regulations.

Applying the law as written would increase the number of covered sources under one program from fewer than 280 to more than 80,000, reaching commercial and residential sources and subjecting them to expenses averaging almost $60,000, according to the appeals court. A second program would reach six million sources, subjecting them to expenses of more than $20,000 each. The cost of the programs would rise to $21 billion from $62 million.

What’s happened here is that by giving the EPA this power, the court has set in motion a process that could create a regulatory process that would cause massive economic dislocation. In order to avoid such an “absurd result,” the administration is therefore selectively enforcing the law. But, as with other such selective policies, what this means is that essentially the government has given itself the right to act as both legislature and executive to decide what the law means and how it can be enforced.

Given other court decisions that have given the EPA vast powers, it’s far from clear that even a setback for the administration will halt its campaign to overhaul the economy in order to comply with the president’s beliefs about climate change. But the impact of a precedent that would allow him to act as a benevolent dictator to force industries to obey his “green” marching orders means more than just the possible shutdown of hundreds of coal-firing power plants around the nation. It would mean a decisive shift in the balance of power between Congress and the executive branch that could shelve the notion of checks and balances that have enabled our constitutional republic to function.

Over the years both Congress and the courts have often acquiesced in a process whereby the executive branch has grown by leaps and bounds to assume the sort of influence and power that would have been unimaginable to the founders. But so long as the legislative and judicial branches retain the power to write and then interpret the laws, even the federal leviathan can be held in check. But if Justice Roberts and the Supreme Court allow President Obama to get away with not only selectively enforcing laws but also re-writing them on the fly, our system of government will have been fundamentally altered for the worse.

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Big Trucks, Obama, and the Rule of Law

In his State of the Union address, President Obama gave the country fair warning when he said he would try to rule by executive action if Congress did not follow his orders. He began to make good on that pledge yesterday by announcing that he would enact new fuel standards for heavy-duty trucks. Along with other new regulations that are being promulgated without benefit of the approval of Congress, the big truck rule is part of the president’s effort to show the world that he is working to save the planet from climate change.

But while energy efficiency and a potential reduction in the amount of oil consumption sound like ideas that everyone can get behind, the problem here is twofold. On the one hand, the imposition of the new regulations will almost certainly raise the costs of these vehicles as well as make them less safe. That’s no problem for large corporations that stand to benefit from “green” subsidies, but is a huge obstacle for small and mid-sized businesses and independent truckers. While Obama continues to insist his green policies are good for business, the new rules raise the prospect of more crony capitalism. Combined with other executive orders that may wind up shutting down hundreds of coal-fired power plants—a potential catastrophe for an industry that is still an important element of the nation’s power grid—Obama’s executive orders present a peril to an economy that is still slowed by a weak recovery.

But just as dangerous is the spectacle of a president exercising untrammeled power without having to worry about constitutional checks and balances. While liberals are delighted about the prospect of the president ignoring Congress and imposing regulations that the legislative branch has repeatedly rejected in order to advance their climate change agenda, the precedent is one that ought to scare both parties and build sympathy for the coming legal and legislative challenges to the president’s dictates.

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In his State of the Union address, President Obama gave the country fair warning when he said he would try to rule by executive action if Congress did not follow his orders. He began to make good on that pledge yesterday by announcing that he would enact new fuel standards for heavy-duty trucks. Along with other new regulations that are being promulgated without benefit of the approval of Congress, the big truck rule is part of the president’s effort to show the world that he is working to save the planet from climate change.

But while energy efficiency and a potential reduction in the amount of oil consumption sound like ideas that everyone can get behind, the problem here is twofold. On the one hand, the imposition of the new regulations will almost certainly raise the costs of these vehicles as well as make them less safe. That’s no problem for large corporations that stand to benefit from “green” subsidies, but is a huge obstacle for small and mid-sized businesses and independent truckers. While Obama continues to insist his green policies are good for business, the new rules raise the prospect of more crony capitalism. Combined with other executive orders that may wind up shutting down hundreds of coal-fired power plants—a potential catastrophe for an industry that is still an important element of the nation’s power grid—Obama’s executive orders present a peril to an economy that is still slowed by a weak recovery.

But just as dangerous is the spectacle of a president exercising untrammeled power without having to worry about constitutional checks and balances. While liberals are delighted about the prospect of the president ignoring Congress and imposing regulations that the legislative branch has repeatedly rejected in order to advance their climate change agenda, the precedent is one that ought to scare both parties and build sympathy for the coming legal and legislative challenges to the president’s dictates.

The ostensible goal of a series of executive orders that are in the works is to reduce carbon emissions and allow the administration to demonstrate to the world that the U.S. is attempting to live by the same rules it is asking developing countries to respect. But given the slim chances that nations like China and India will ever be willing to adopt measures that similarly restrict their growing economies, the gesture tells us more about the desire of liberals to re-engineer the economy than any concrete measure that will actually affect the global climate, even assuming that the science Obama cites to justify his policies is as settled as he claims.

As with every other such measure, big companies that stand to benefit from some aspect of the president’s rules can always be found to back up the administration. But the nexus of crony capitalism and green activism is one that is highly vulnerable to manipulation and possible corruption. The new environmental regulations the president is imposing on the economy without congressional approval are reminiscent of the same desire to pick winners and losers that have led to past problems such as the Solyndra scandals and other green boondoggles.

The president is on firm legal ground when it comes to measures that can be justified as rules on carbon because of the courts granting the Environmental Protection Agency the power to regulate emissions. But the vast scale of what is being contemplated on coal as well as trucks grants the executive branch the kind of power to micromanage the economy that recalls the first days of Franklin Roosevelt’s New Deal when the courts let him run roughshod over the nation.

But the aggressive push for climate change is about more than Obama’s desire to shape his legacy as the president who would, as he said in his megalomaniacal 2008 boast, slow “the rise of the oceans” and “heal” the planet. What we are now witnessing is an attempt to create an imperial presidency that seeks to govern without Congress at home as opposed to the traditional model in which commanders in chief conduct wars and foreign policy without being held accountable.

It is not enough to claim, as Obama does, that he is working on behalf of a righteous cause and that he is tired of waiting for Congress to do what he believes is the right thing. In a democracy, the people and their elected representatives rule. The president can lead but he must respect the rule of law. That is a principle that this administration appears to be willing to discard along with old trucks and coal. But even if you share Obama’s fears about the climate, his desire to govern as a benevolent despot is one that should concern liberals as well as conservatives. Though Democrats may be under the impression that they will hold the White House forever, the next time a Republican is sitting in the Oval Office, they may recall their enthusiasm for Obama’s unconstitutional behavior with regret.

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Kings, Presidents, and Barack Obama

From the first president to our current chief executive, Americans have always chafed against the growing power of the presidency. Having come into existence in protest against the unchecked power of a king and an unaccountable parliament, Americans have always been particularly sensitive to the notion that the executive branch should take on the trappings or the imperial grasp of monarchy. And yet the history of our republic is told in no small measure by the way in which our presidents have gradually accumulated more power. For the most part that involved their conduct of military and foreign policy, the aspects of government that the Constitution made the direct responsibility of the president.

Invariably the exercise of that power, whether it involved George Washington’s decision to negotiate a treaty with Great Britain or Abraham Lincoln’s suspension of habeas corpus and the conduct of the war against southern rebels, caused critics to accuse these presidents of acting like monarchs. However, such accusations were heard when some presidents acted on domestic issues as well. Andrew Jackson’s “war” on the Second Bank of the United States prompted his Whig opponents to call him a king. In the 20th century the executive branch grew into the modern presidency, and talk of presidents as kings changed to one of an imperial presidency in which the occupant of the White House seemed to have usurped the congressional prerogative to declare war. But as we celebrate President’s Day, Barack Obama has turned that traditional debate about the presidency on its head. In doing so, he has resurrected centuries-old worries about an attack on the rule of law by an out-of-control president.

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From the first president to our current chief executive, Americans have always chafed against the growing power of the presidency. Having come into existence in protest against the unchecked power of a king and an unaccountable parliament, Americans have always been particularly sensitive to the notion that the executive branch should take on the trappings or the imperial grasp of monarchy. And yet the history of our republic is told in no small measure by the way in which our presidents have gradually accumulated more power. For the most part that involved their conduct of military and foreign policy, the aspects of government that the Constitution made the direct responsibility of the president.

Invariably the exercise of that power, whether it involved George Washington’s decision to negotiate a treaty with Great Britain or Abraham Lincoln’s suspension of habeas corpus and the conduct of the war against southern rebels, caused critics to accuse these presidents of acting like monarchs. However, such accusations were heard when some presidents acted on domestic issues as well. Andrew Jackson’s “war” on the Second Bank of the United States prompted his Whig opponents to call him a king. In the 20th century the executive branch grew into the modern presidency, and talk of presidents as kings changed to one of an imperial presidency in which the occupant of the White House seemed to have usurped the congressional prerogative to declare war. But as we celebrate President’s Day, Barack Obama has turned that traditional debate about the presidency on its head. In doing so, he has resurrected centuries-old worries about an attack on the rule of law by an out-of-control president.

Unlike many of his predecessors, President Obama lacked the confidence and the support he needed to conduct military operations without prior congressional approval. The spectacle of the president asking Congress to authorize a strike on Syria’s chemical-weapons capacity last summer and then withdrawing that request once he realized he would lose illustrated not only his shaky personal standing but also an abdication on his part of the power to react to international threats that his predecessors had acquired. Yet even as Obama has become weaker in the category of foreign and defense policy, he has sought to expand his power elsewhere. The president’s decisions to selectively enforce laws, whether it be immigration regulations or the implementation of his own signature health-care legislation, has created a new kind of imperial presidency. The question now is no longer about the use of clear constitutional authority as commander in chief to conduct wars without much congressional or judicial oversight but about the way this president seems to prefer to govern at home without respect for the rule of law. This is creating a new kind of constitutional crisis that should trouble Americans even more than their past concerns about Mr. Obama’s predecessors.

Barack Obama is far from the first president to come to the conclusion that he should be able to govern on his own. All presidents have at times sought to ignore both the legislative and judicial branches. But the president’s decision to treat ObamaCare as a law that can be enacted according to his whims or political advantage is an extraordinary abuse of power. With more than two dozen delays of various aspects of the law over the past year, the administration has attempted a piecemeal implementation that will frontload its benefits and postpones much of the pain of the law’s provisions for both employers and the economy. While this has been defended as a response to the business community’s problems, that argument falls flat when one realizes that the delays are not so much about rescuing the economy from a massive federal power grab as they are merely putting off the disaster until after first the 2012 presidential election and now the 2014 midterms.

Put in the context of the president’s declaration about the use of executive orders in the State of the Union address, this creates the impression that there is a White House that appears to govern on its own without respect to either the Constitution or the will of the American people. By saying that he will govern wherever possible in the final three years of his term by executive orders rather than wait for Congress to pass the laws he wants, the president is signaling the beginning of a new constitutional order that puts past disputes about the use of force in a different perspective. If his predecessors often overstepped their authority or created new powers out of thin air it could be justified as flowing from their constitutional authority to protect and defend the United States from foreign enemies. But by declaring himself a one-man legislature and executive, this president presents a new threat to the rule of law that can’t be rationalized in that manner.

The American republic and its Constitution have proved that they can survive all manner of threats and political crises. That will also be true of Obama’s selective approach to being the country’s chief legal officer. But just as his predecessors have used past power grabs to justify their own expanding authority, so, too, will the presidents who follow Barack Obama into the Oval Office build on his abuses. That should cause all Americans, whether they are liberal or conservative, Democrat or Republican, to fear for the future of the rule of law in this country. Though talk of presidential monarchs is as old as the United States, in this case, the worries may be justified.

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