A Question For Democrats: What Can’t Obama Do?

By David Harsanyi

Thursday, August 28, 2014

Enforce laws at your political leisure. Name recess appointments when there’s no recess. Legislate through regulation. Rewrite environmental laws. Rewrite immigration policy. Rewrite tax legislation. Bomb Libya. Bomb Syria. All by fiat. All good. The only question now is: what can’t Barack Obama do without Congress?

How about joining binding international agreements without the Senate’s consent? Also, good. The New York Times reports that Obama, who failed to pass sweeping domestic climate-change legislation in his first term, is “working to forge a sweeping international climate-change agreement to compel nations to cut their planet-warming fossil fuel emissions, but without ratification from Congress.”

Compel? That’s ok. Just ask Jonathan Chait, who argues that there are a number of reasons why the Senate’s consent isn’t really necessary. Mostly, though, when you really consider the “seriousness and urgency — you can’t un-melt a glacier — the broad way to think about climate politics is that Republicans have ceded the field completely.” Well yes, that’s definitely a broad way to think about any issue. A bit authoritarian, sure, but as the Constitution probably says somewhere, when you deem an issue super important, feel free to ignore the rest of this nonsense and do what’s “right.”

In this case, if an American fails to participate in environmental scaremongering, if he believes in human adaptability over unproductive panic, if he reasons that the benefits of fossil fuels usage outweigh the benefits of turning Luddite, and if he votes for people who won’t support the United Nations’ prescriptions for dealing with climate change, he has relinquished any right to participate in the debate. Sounds reasonable enough.

As always, ad hoc justification to come.

The United States doesn’t always use the treaty provision in the Constitution to enter into international deals. But if an agreement is “sweeping,” involves a long and costly commitment from the United States, and has the ability to stop glaciers from melting and save the Earth, isn’t it exactly the sort of pact the Treaty Clause was meant to cover? In truth, even if the administration finds a way to enter into a “politically binding deal” in Paris a couple of years from now (and it’s unlikely such an agreement would ever really be binding so don’t get too worried) it would still be an abuse of power.

Now, run-of-the-mill presidents may only enter into international treaties with approval of two-thirds majority of the Senate. According to the New York Times, though, the Obama administration believes it can “sidestep that requirement.”  I realize it’s schmaltzy and archaic and completely reactionary to mention this sort thing: but Obama swore to preserve, protect and defend the Constitution of the United States not to work hard to circumvent the separation of powers.

Today, though, we have Treasury Secretary Jack Lew looking for ways to unilaterally block completely legal corporate tax inversions without Congress. We have an administration reportedly looking for ways to allow millions of illegal immigrants to remain in the US – which, done legislatively, I happen to believe is the right thing. Now, granted, it must get exasperating to deal with a legislative branch that acts as if deciding what legislation is passed is within its purview. It’s possible that Obama is simply trying to bait some disaster-prone Republicans into shutdown mode before the midterms – which makes the whole spectacle even more reckless.

Then again, since Josh Earnest would never ever lie to the American people, we must take him at his word. “The president is determined to act where House Republicans won’t,” he says on immigration, “and there is strong support for that all across the country.” Since Republicans can only pass legislation, Obama must be planning to unilaterally reimagine the law.

And pundits, no doubt, will scurry to rationalize the abuses that they protested when the other guy was running things. The first instinct is to protect and the second is to cobble together the defense. Obama, they’ll tell you, has issued fewer executive orders than other presidents – as if the absolute number of unilateral moves rather than the content and impact of those moves is what matters. These are many of the same pundits and operatives who ridiculed the idea that Obama’s recess appointees to the National Labor Relations Board were there unconstitutionally – until all nine justices of the Supreme Court found that they were.

“The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all, and that’s what I intend to reverse when I’m President of the United States of America,” then-candidate Obama declared years ago.  You can imagine what might have transpired if George Bush had argued that a lack of seriousness regarding a “broken” Social Security program – and the obstruction of his reform efforts – meant that Democrats had ceded the political field on the issue and should be sidestepped. It might not have gone over that well. Then again, liberal pundits seem to be under the impression that the issues we face today are the most significant in the history of mankind. Every liberal hobbyhorse becomes a moral imperative. And as frustration mounts, the abuses grow and the excuses get uglier.