Executive power

Barack Obama was billed as a transformational president, and, in some ways, he has been. Certainly, as the first African-American to win the Oval Office, his election has changed the country in a positive and welcome fashion. What has become increasingly clear, however, is that he is no different from too many of his predecessors in amassing and asserting executive power. Any president who can be compared to Richard Nixon has a problem.

That analogy comes from an opinion piece by Michael W. McConnell, a former federal judge and a law professor at Stanford. Writing in Tuesday’s edition of The Wall Street Journal, he critiques the Obama administration decisions not to enforce federal laws and laments those choices as unconstitutional usurpations of congressional authority. It is a powerful rebuke.

That is particularly true in that McConnell focuses on one administration action that critics of Obama – the Journal in particular – could be expected to applaud: his suspension of the employer mandate in the Affordable Care Act. Commonly referred to as Obamacare, that act is regularly seen as the president’s signature accomplishment the success of which will determine his place in history.

But while it may be Obama’s in terms of credit or blame, it is in fact a duly enacted federal law. And there is nothing in it that says the employer mandate can be suspended at the president’s whim.

McConnell recognizes that the president does have broad authority to choose how to enforce the law, just not whether to do so. As he points out, the Constitution says the president “shall take Care that the Laws be faithfully executed.” There is no “unless he doesn’t feel like it” clause.

The president can refuse to enforce laws he believes to be unconstitutional. McConnell acknowledges that and reminds us that attorneys general “under presidents Carter, Reagan, both Bushes and Clinton all agreed on this point.”

As he says, however, with one exception, “no prior president has claimed the power to negate a law that is concededly constitutional.” That leads to the comparison to Nixon, whose refusal to spend money appropriated by Congress was struck down in court. Surely, that is not the historical company Obama supporters have envisioned.

McConnell also cites a 1998 case in which the Supreme Court struck down a law granting the president a line-item veto. In that ruling, Justice John Paul Stevens wrote: “There is no provision in the Constitution that authorizes the president to enact, to amend or to repeal statutes.”

Nonetheless, McConnell says, Obama has done just that – and not just with Obamacare. He refers us to the president’s halting the deportation of about 800,000 people who met certain criteria, effectively enacting the Dream Act that Congress had refused to pass. Obama also replaced congressional requirements for states under the No Child Left Behind Act with new standards his administration came up with. McConnell does not, but one could also add the administration’s decision not to enforce federal drug law, which resulted in the de facto legalization of marijuana.

In terms of their actual effect on everyday Americans, these actions are minor. And in simple terms of how best to proceed, the president may well be correct. But in any discussion of public policy there are two fundamental questions: What should be done and who should decide. And in almost every instance, the second question is the more meaningful.

Even if Obama is right on all policy questions, there will be other presidents – probably including other Nixons – and who wants them to be able to ignore the law? President Obama would do well to heed McConnell.

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