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Obama and Trump Are Proof the U.S. Needs Checks on Presidential Power — Whichever Party is in Charge

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For nearly 17 years, I have been complaining about US presidents’ executive orders. First under George W. Bush, and then under Barack Obama, I was worried about the use of decrees as a substitute for legislation.

But I noticed a pattern. My Democrat friends shared my worries about Bush’s executive orders. And it’s fair to say Bush was pretty aggressive—restricting travel, authorizing domestic spying, and imposing a near-prohibition on stem cell research. But when Obama was president, they made excuses for his decrees on immigration and health care. “Congress is gridlocked!” they’d point out, noting that Republicans had blocked, and vowed to continue to block, Democratic legislation. “We have to get things done, and this is the only way.” My repeated question—“What if a tyrant ever won the presidency?”—seemed hypothetical and abstract.

After the election of Donald Trump, the question doesn’t seem so abstract to my left-leaning friends anymore. One came into my office and admitted a new interest in the Federalist Papers—the collection of essays explaining the principles that underlie the US Constitution. It’s easy to shrug off presidential power grabs when your own party is in charge. But the ruling party changes reliably in the US. That’s why people of all political stripes should be grateful for the system set up by the Constitution, which separates powers so that even if a bad apple gets to the White House, his capacity to do damage will be limited.

When it comes to the number of executive orders issued by presidents during four-year terms, both Obama and Bush issued fewer than their immediate predecessors:

The champion of executive orders was Franklin D. Roosevelt, issuing about 1,200 per term, or nearly 300 per year. Obama, by those standards, is small potatoes.

But the number of executive orders is not a measure of the abuse of constitutional power. Rather, it’s the use of these orders as a work-around in policy areas where the president wants to do something, but only Congress has the authority to act. Decisions on spending and taxation would be clear violations, for example, because the president would be using decrees in areas that should require House and Senate action, as declared in Article I of the Constitution, especially sections 7 and 8.

And that is the sort of thing that worried me, first under Bush II—and there my Democrat friends agreed with me—and then under Obama. Bush imposed a remarkable array of restrictions on civil liberties and travel, many of which seemed to violate separation of powers, due process for citizens, and Fourth Amendment protections against illegal surveillance. A number of these executive orders were documented (hyperbolically, but not incorrectly) by some of the “Impeach Bush!” folks on the left.

In 2008, Obama ran, in part at least, against these kinds of abuses. But once in office, he found that following the Constitution required work, and possibly compromise. So instead of repudiating executive orders, he doubled down on them. To his credit, he announced his intention to do, saying “Elections have consequences, and I won.” Most disturbingly, he asserted his obligation to rule by decree:

We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone…And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward in helping to make sure our kids are getting the best education possible, making sure that our businesses are getting the kind of support and help they need to grow and advance, to make sure that people are getting the skills that they need to get those jobs that our businesses are creating.

To paraphrase, in an emergency—which the president in this case says he can unilaterally identify if someone “needs help”—Obama believed he should not have to “wait for legislation.” We aren’t talking about the aftermath of a hurricane here. All that’s required is that the president personally thinks that education (which is provided by the states, not the federal government) is in some way not the “best possible” one that could be offered to children.

This doctrine means that Congress has at most an advisory role on spending and taxation. And Obama seemed to believe exactly that, using executive orders to modify the tax rates on Affordable Care Act schedules (and we know those are taxes, because chief justice John Roberts said they are taxes). Some of the reactions to Obama’s expansive executive orders were partisan, but even a careful parsing reveals that there were more than five distinct amendments of ACAa piece of legislation—by unilateral executive order.

According to the Constitution, you can’t amend legislation by executive order. But the Democrats were happy to let Obama do it. The problem is that once you accept “I’ve got a phone and I’ve got a pen” as the rule, there are no rules.

Trump’s election has seen Democrats reverse course so dramatically there’s a danger of whiplash. One example would be particularly amusing, if it weren’t so problematic. Obama issued a set of executive orders in an attempt to modify immigration and deportation policies. I’m not arguing the merits of those here; the point is that the president simply cannot do that. According to Article II of the Constitution, sections one and three, the president only has the ability to execute the laws, not change, abolish, or create them. The courts, rightly, smacked Obama down.

Now, the very states that supported Obama’s right to executive overreach on immigration—including, most saliently, Washingtonoppose Trump’s attempt to do pretty much the same thing. Delightfully, they are using the very reasoning that beat Obama back.

Still, one has to take allies where one can find them. So to all my newly-fervent defenders of the Constitution from the left: Welcome back. Perhaps it’s time to accept that limiting executive power is a cause we should all fight for—no matter what side we’re on.

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