By Mark Rhoads -
When friends and defenders of President Obama look at his major efforts to bypass Republicans in Congress, they usually make the argument that Obama is only pushing the envelope of unilateral presidential power to the maximum in order to get around what he claims are obstructionist tactics by GOP lawmakers and that he is only doing what other past presidents have done in a similar situation. Well, maybe that is the most charitable view of Obama's push to do as much as he can by unilateral exectutive orders.
But a more sinister interpretation of his behavior, particularly in light of his past criticism as a U.S. Senator of times when President George W. Bush used unilateral executive powers to counteract a Democratic Congress, is that Obama has changed his fundamental view of how the three branches of government are supposed to balance each other in favor of a view that holds the Executive Branch is superior to the other two branches, including both Congress and the Supreme Court. HIs new view taken to an extreme appears to undermine the careful plan for checks and balances designed by the authors of the Constitution. Reasonable scholars of American democracy can have wide differences of opinion about whether or not Obama has gone too far or not in his push for unlilateral executive power, but the big problem is this.
While everyone can read what the Constitution says about the separation of powers, the plan is not self-enforcing and so much depends on the subjective judgment calls and self-discipline of individual elected and appointed officials who do or do not believe in the spirit and values of the Constitution. We like to pretend that we are a nation of laws and not of men and women who hold office, but there have been times in our history when the failure of officials to honor their oaths of office to defend the Constitution have created severe crises for the government. Two examples might be the unconstitutional exercise of exectuvie power by President Franklin D. Roosevelt when he ordered American citizens of Japanese ancestry to relocate to prison camps early during World War II, or the efforts of President Richard M. Nixon to misuse his power in order to obstruct justice during the investigation of the Watergate break-in scandal in 1973.
What it all comes down to is this. Does President Obama, or any incumbent president, really believe in the spirit of Constitution or not? If the answer is yes, then casual moves in the direction of unlilateral executive power will be infrequent and not cause for alarm. But if the answer is no, then every move to use unlilateral executive power is a potential source for worry. Since we cannot peek into the brain or motives of any president, we are only left with trying to figure out the pieces to the puzzle by careful observation of both words and actions.
While confrontation with the opposition party in Congress is very common, twice in recent years, President Obama has taken the highly unusual step of directly confronting the Supreme Court in a very public manner. He directly challenged the way the Court decided the Citizens United case during a joint session of Congress as the justices sat in front of him wearing their black robes. More recently, he seemed to suggest that the concept of judicial review of the constitutionality of his health care law was not valid because members of the Court were not elected. He knew better, but he pushed the envelope very harddd anyway possibly to intimidate the Court before he backed off and bowed to strong public opinion that he was wrong.
It is these challenges to the Judicial Branch that make Obama's push for unilateral executive power more sinister than a less powerful push by President George W. Bush in his battles with the legislative branch alone. In the fog of war that is daily politics, it is hard to sort out what a president most deeply believes about the Constitution. But the question is important to ask of anyone who seeks the election or re-election to the office. My worry about Obama is that he has become so over-zealous in his push for his political goals that he is too willing to sacrifice the process of checks and balances that keeps us all free. This same problem should worry many citizens and not just conservatives because the next president to push executive power too far could be a Republican.
