By Scott Erickson
Wednesday, January 29, 2014
In the build up to Tuesday night's State of the Union
address, Obama administration officials had increasingly referenced the
president's intention to utilize a "pen and phone" strategy to pursue
his liberal agenda, relying on executive orders in place of the often difficult
process of negotiating with congress.
Mr. Obama, obviously frustrated by his administration's
inability to fully accomplish its legislative objectives, had sought to cast
Republicans as the sole impediment standing between his policies and a
flourishing economy.
What he had failed to acknowledge, however, was his own
inability to build support for his legislative priorities among either members
of congress or the American people.
In his State of the Union address, Mr. Obama made little
mention of the need for working across the aisle to engage his ideological
adversaries.
Instead, Obama asserted that, when he deemed necessary,
he would bypass the legislative process and instead utilize the seemingly ever
expanding power of the executive pen.
Obama said, “America does not stand still – and neither
will I. So wherever and whenever I can take steps without legislation to expand
opportunity for more American families, that’s what I’m going to do."
The president's movement toward enhancing the power of
the executive at the expense of congress has angered many. Senator Ted Cruz
(R-TX) lamented, "The Obama administration has been so brazen in its
attempts to expand federal power that the Supreme Court has unanimously
rejected the Justice Department's efforts to expand federal power nine times
since January 2012.”
Mr. Obama's pivot away from the constitutional
prerogatives of congress in favor of a more unilateral approach to managing
government is not the first such effort on the part of a chief executive to
wrest control from a separate but co-equal branch of government.
Next week marks the 77th anniversary of the announcement
of Franklin Roosevelt's proposed Judiciary Reorganization Bill. Frustrated by
the Supreme Court having invalidated multiple elements of his signature New
Deal, FDR sought to pass legislation through the heavily Democrat-controlled
congress that would allow him to fundamentally alter the makeup of the Supreme
Court and pack the Court with judges more sympathetic to his New Deal
endeavors.
The plan called for allowing the president to appoint an
additional justice to the Supreme Court for every sitting justice over the age
of 70. Given the makeup of the Supreme Court at the time this would have
allowed Roosevelt to appoint an additional 6 justices.
As the constitution made no provision for the number of
justices on the Supreme Court, Roosevelt's scheme was not seen as overtly
unconstitutional. It was, however, seen a brazen attempt to circumvent the
constitution's inherent system of checks and balances and it was met with immediate
criticism.
Jeff Shesol, author of Supreme Power: Franklin Roosevelt
v The Supreme Court, stated that upon learning of FDR's plan, even members of
his own administration reacted with incredulity. "John Nance Garner, who
was Roosevelt's vice president, went back with him to Capitol Hill, stood in
the well of the Senate and, as the plan was read aloud to the senators, Garner
held his nose and gestured thumbs down,” said Shesol.
As debate over FDR's court packing scheme intensified in
the ensuing months, the public grew increasingly unsupportive of his idea.
Although personally popular, FDR’s attempt to pack the court with political
cronies was seen as far more offensive than was the court having invalidated
many of FDR’s legislative undertakings.
In an article for the American Political Science Review,
author Gregory Caldeira wrote that the central debate had less to do with the
specifics of New Deal legislation, rather, "FDR's proposal forced the
public to choose between the widely approved policies of an extremely popular
president and the institutional integrity of a controversial Supreme
Court."
The public ultimately supported the maintenance of
governmental checks and balances and soured on FDR’s attempt to inflate the
power of the presidency at the expense of the judiciary.
Following a series of influential events that included
the retirement of Justice Willis Van Devanter as well as the Court’s validation
of the Wagner Act, a significant piece of Roosevelt’s New Deal, an amended
version of the Judiciary Reorganization Bill was passed on August 26, 1937,
having been stripped of its most contentious elements, including the increase
in Supreme Court justices.
President Obama, himself enjoying far less public support
than FDR in his day, ought take a hard look at history and consider a renewed
attempt at building consensus through leadership rather than opting for the
imperious approach of governing through executive fiat.
Pens and phone calls may allow for the easier
implementation of Mr. Obama’s agenda but it would be inconsistent with the
Founder's intent of a government predicated upon, among other things, the
separation of powers.
Understandably, the public at times becomes frustrated by
warring factions in Washington but it will always opt on the side of
maintaining institutional integrity over the whims of a frustrated executive.
Mr. Obama should accept that reality and understand that leading a divided government
often requires conciliation, not an aggrandized executive.
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