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.