Constitution Day Discussion Focuses on Imperial Presidency
Posted Sep 19, 2014
Last night, the Department of Political Science led a discussion of "The Imperial Presidency: Unilateral Presidential Action and Constiutional Limits" for one of Union's larger Constitution Day events. With President Obama's unilateral actions stopping deportation of certain illegal immigrants, making recess appointments when the Senate was in pro forma session, bombing Libya without Congressional authorization, waiving compliance with No Child Left Behind (NCLB), changing dates for implementation of health care reform and other actions, many Americans have expressed concern that the president is becoming too powerful and that our rights are in danger. With this background, the Department faculty made several presentations to help students think about these issues.
Dr. Evans began by placing the president's actions in context. By examining history, Dr. Evans showed that Obama's actions continue a long line of unilateral presidential action that increase presidential power from the Louisiana Purchase, the Emancipation Proclamation, the desegregation of the military, instituting price and wage controls, requiring cost benefit analysis for regulations and President Bush's recent more recent decisions to declare certain people enemy combatants, authorize warrantless wiretapping, and other things.
Presidents can act unilaterally in these ways for several reasons. First, the president relies on broad and ambiguous grants of presidential authority. The executive power, Commander-in-Chief clause, and take care causes are so broad that presidents can claim that provision authorizes the president to act. The president then gets away with it, second, because Congress is unable to respond. To stop presidential action, the House and Senate must pass a bill and then get the president to sign it. If the president vetoes it (which is likely), they need a 2/3 majority to overturn it. Moreover, many members may support the presidential action and will ignore the procedural regularities which allows the president to succeed. Thus, U.S. history shows presidents taking the initiative, Congress acquiescing through inaction, and future presidents using that as precedent to extend presidential power even more. Third, courts do not challenge the president because to sue someone must have standing. In many of these cases, the person that loses is Congress but it is too divided to act. Even if some members decided to sue, precedent dictates that a small group can not act to protect a larger group.
Dr. Evans then looked at how President Obama's actions are different. First, he talked about how NCLB requires 100% proficiency in reading and math by 2014 which is impossible to meet. While the law allows the Secretary of Education to issue waivers, Secretary Duncan will only grant waivers if states adopt reforms favored by the Administration. If the state does not, the state does not get the waiver and loses federal education money. While the waiver is legal, Secretary Duncan is using the waiver in ways never intended.
Second, the president's health care reform proposal requires certain mandates to occur at certain times with no flexibility. However, the Administration has delayed mandates at least 32 times. The justification is transition rules for taxes as the Treasury Department has historically granted temporary relief to groups so they can adjust to new taxes. The difference here is the time frame. Most laws take affect shortly after passage. Thus, transition rules are useful to help groups adapt to the new situation. The ACA is different because everyone knew 4 years ahead of schedule what would happen which is a sufficient transition time. The changes the Administration made are a result of political decisions to protect certain groups and prevent more negative publicity which would harm Senate Democrats running for reelection.
Third, the president has decided not to deport children brought here illegally by their parents and has issued those children work permits for two years. He is now talking about expanding that program to approximately half the illegal immigrant population in the US. The president can refuse to deport these individuals using prosecutorial discretion to make sure that the nation focuses on more important crimes. The power to issue work permits come from the 1986 immigration law. The difference is that the deferrals are usually done "on a country specific basis, usually in response to war, civil unrest, or natural disasters." Moreover, the temporary legalization is not temporary because the political costs of Republicans reversing it is too great. Consequently, the president has de facto made law when Congress has considered and rejected this proposal.
Dr. Evans suggested the best way to evaluate unilateral presidential power is to use the "what's good for the goose is good for the gander" principle. This principle says that if you would be happy with a president of the opposite party doing what a president of your party is doing, then the use of power is probably OK. If you would object to a president of the opposite party doing what a president of your party does, the uniltaral power probably goes too far.
Dr. Watson then presented the libertarian, conservative, and liberal critique of President Obama's actions. First, libertarians see Obama's action as a continuation of the unconstitutional growth of government. As such, they see the difference between Bush and Obama as one of degree and not kind as both have taken unconstitutional action in unconstitutional ways.
Second, conservatives are more likely to support President Obama's actions in the international realm because they believe the president has more power in foreign policy. Yet, they object to his actions in domestic politics because the Constitution makes the Congress more powerful in that realm. The conservative critique is both opposition to the action and to the procedure because the president is making law without Congress approval.
Third, liberals, like Jonathan Turkley and Bruce Ackerman, tend to support the action but disagree with how the president makes decisions. They fear that President Obama's actions set a precedent for a conservative president to do things they oppose. Of course some liberals like Cornell West believe the subtance, especially in foreign policy, is wrong as is the procedure. He opposes the president's drone policy and his extension of President Bush's anti-terror policies.
Then Dr. Ryan discussed the president's taking military action without Congress. Specifically, he focused on the president's decision to "degrade and destroy" ISIS without Congressional authorization. The president relies on 4 sources but Dr. Ryan does not believe these provisions authorize the use of force as the president claims. First, Bush's national security directive in 2002 authorizing preemptive action is questionable since Obama opposes preemptive war. Second, the Authorization for Use of Military Force in 2001 applies to al Qaeda when ISIS did not exist at the time and al Qaeda opposes ISIS. Third, the War Powers Act does not apply because the Administration claims that the air strikes are not hostile actions Finally, the Iraqi War Resolution in 2002 authorizes war against Iraq and Iraq is now on our side making that claim dubious.