Constitutions built upon a separation of powers were not made to last. The conceit that executive and legislative branches of government might be set in equipoise, and balance each other off over the decades, was amusingly mocked by Oliver Wendell Holmes, Sr. in The Deacon’s Masterpiece (1858):
Have you heard of the wonderful one-hoss shay,
That was built in such a logical way
It ran a hundred years to a day…?
The secret to building a carriage, the Deacon thought, was to make each piece as strong as the rest, so that no one part wears out first. And as there’d never be a weakest spot, the shay would go on forever, just like the imagined Madisonian Constitution. Well, it lasted and lasted, the talk of the town, until 100 years to the day it all collapsed at once and the new owner found himself sitting on a pile of ashes. No part wore out first. Everything went simultaneously. “End of the wonderful one-hoss shay. Logic is logic. That’s all I say.”
The burgeoning literature on the Obama administration, one of the most lawless in U.S. history, includes Michelle Malkin’s Culture of Corruption (2009), Tom Fitton’s The Corruption Chronicles (2012), Gene Healy’s False Idol (2012), John Fund and Hans von Spakovsky’s Obama’s Enforcer: Eric Holder’s Justice Department (2014), Andrew McCarthy’s Faithless Execution (2014), and the many legal critiques of Obamacare. None, however, focuses on the damage the 44th President has done to the U.S. Constitution like George Mason University law school professor David E. Bernstein’s excellent new book, Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.
Let the historians charting the growth of executive power take note of August 30, 2015, which is the day America became a nation in which Presidents could rename mountains and nobody asked how.
Last week, Germany’s chief prosecutor—Generalbundesanwalt Harald Lange—got himself fired. It’s a big enough deal to occupy the front pages and, in coming months and years, armies of administrative lawyers and scholars. The precise facts and circumstances are a bit murky, and the story is still unfolding. Enough is known, though, to invite some rule-of-law thoughts and a few cautious transatlantic comparisons and contrasts.
Like movie sequels, second editions of notable scholarly books often disappoint. Phillip J. Cooper’s By Order of the President: The Use and Abuse of Executive Direct Action (University Press of Kansas, second edition) is an exception.
THE WHITE HOUSE—Declaring his intent to cure the public of its worshipful disposition toward the executive office, and consonant with the Whiggish constitutional modesty on which he campaigned in 2008, President Obama announced that the much-anticipated location of his Presidential Library and Museum will be nowhere.
“Presidential libraries are monuments less to the egos of individual executives, which is bad enough, than to presidential gigantism,” Mr. Obama explained in a statement, which was issued in writing in order to diminish the grandeur an Oval Office setting would otherwise have lent it. “The presidency is a swollen institution that distorts our constitutional system. I consequently will donate my papers to the University of Chicago School of Law, whose faculty I hope will study the constitutional implications of my and other recent presidencies.”
In his second term, President Obama has unilaterally pressed his agenda, now that he has lost the congressional support needed to enact his political priorities through legislation. These uses or abuses of executive power include the suspension of deportation and granting of work permits for illegal aliens and various decisions to delay the effective date of certain provisions of Obamacare. As a consequence of the President’s actions, the proper scope of executive authority should figure front and center in the coming presidential campaign.
In conducting this important debate over the nature of our republican order, we must demand that candidates separate out their policy positions from their position on the appropriate scope of executive power. Thus, it is perfectly possible to embrace the policy goals of the President’s executive order on immigration while objecting to its constitutional basis, and vice-versa. Only by forcing candidates to answer the constitutional question can we have any confidence that they will stick to a consistently constitutional view of executive power. After a change in partisan control of the Presidency, partisans in both parties have had a habit of waking up on election morning to find that Article II has acquired a new meaning.
In questioning candidates, it is also important to make a distinction between the unity of the executive and the scope of its power—issues that are often confused.
Executive power has been growing. Many people on the right have come to appreciate this growth over the last 6 years of the Obama Administration. But the growth in recent years first began under George W. Bush. In this area, Bush and Obama have more in common than not.
Can anything be done about this? While it is possible that the courts could act to constrain the executive, the better way – in terms of effectiveness – would be if the Congress were to pass reforms of executive power. But can Congress feasibly constrain the executive? One question is whether Congress is willing to take such constraining action. Another is whether Congress would have the power to take such action, given that the President has a veto over legislation.
If one looks at modern American history, there appear to be two situations where significant reforms of the existing power of the executive branch have been enacted.
Over at the Originalism Blog, Mike Ramsey and Seth Barrett Tillman have been debating whether House Speaker John Boehner’s invitation to Israel’s Prime Minister Netanyahu to speak to Congress is unconstitutional. See also the posts by David Bernstein and Peter Spiro.
Here I do not want to take a position on the issue, but just to note some interpretive moves that Mike and Seth make concerning the Receive Ambassadors Clause, which provides that the President “shall receive Ambassadors and other public Ministers.”
Seth argues for a strict reading of ambassador and public minister. He argues that Netanyahu is neither an ambassador nor a public minister. An ambassador has a meaning that excludes heads of government and other public ministers extends only to “diplomatic officials having lesser status or rank than ‘Ambassadors.’” He supports this reading of other public ministers with various other clauses that seem to suggest this reading of other public Ministers. See Article 2, Section 2, Clause 2 (referring to “Ambassadors, other public Ministers and Consuls” as under the scope of the President’s appointment power). See also Article 3, Section 2, Clauses 1 and 2 (similar as to judicial power). As a reading of the language, Seth’s argument here is quite plausible.