The 'We Can't Wait' Clause

By Charles C. W. Cooke

Thursday, August 28, 2014

Unlike most American presidents, Barack Obama took his inaugural oath of office twice, the latter affirmation serving as a private belt-and-braces remedy to a verbal mistake, the former as the usual public spectacle. Four years later, he repeated the trick, promising fealty first during an exclusive White House ceremony, and then, a day later, before the nation at large. Thus did our 44th president bring to a remarkable four the number of times that he had solemnly sworn to faithfully execute the Office, and, to the best of his ability, to preserve, protect, and defend the Constitution of the United States. As far as I am aware, no other commander-in-chief has so ardently professed his zeal.

And yet, despite this unprecedented quartet of repetitions, the pledge appears to have rather faded in the imagination. Since the Democratic party lost control of the House in 2010, Obama has taken to speaking as if the United States were in an existential crisis. Touting his preferred unemployment legislation, the president promised dramatically in 2011 that “if Congress won’t act, I will.” A year later, adumbrating his coveted cyber-security measures, he threatened the same. In 2013, while selling his plans to alleviate climate change, Obama doggedly assured the press that “if Congress won’t act soon to protect future generations, I will.” In June, slamming the legislature for declining to acquiesce to his agenda, Obama let viewers know that if the House of Representatives wouldn’t act on immigration, he would have to do it himself. And, in the early part of this week, the New York Times reported that the treaty-making power was to be abused as well, with the president attempting to establish a new climate agreement by taking a solo end-run around the Senate. In his second term especially, this has become a favorite approach — the product of a deep-seated confidence that the country is more closely wedded to his political program than it is to the settled legal order. “I promise you,” Obama affirmed earlier in the month, “the American people don’t want me just standing around twiddling my thumbs and waiting for Congress to get something done.”

Democracies being volatile things, it is difficult to know precisely what the American people “want” the president to do. Either way, it is wholly irrelevant to the question at hand. I am quite sure that it is frustrating for Barack Obama that he happens to be president of the United States at the same time as the House of Representatives is controlled by the Republican party. I daresay, too, that it was irritating for George W. Bush that he happened to be president at a time during which there were insufficient legislators to indulge his own immigration plans. But, one might ask, “So what?” However they might have conceived of themselves and their agendas, neither our 43rd nor 44th presidents were possessed of a cosmic right to see their programs codified into law. Instead, they were and are but one cog in a large machine — a machine, it should be remembered, that deliberately stations the executive as one of the least important players within the legislative field. In America, presidents enjoy the right to use their limited powers to get as much of what they want as is possible. But they enjoy nothing more. When his ambitions are tempered by the ambitions of the other elected figures within the structure . . . well, nothing happens. That, I’m afraid, is how separation of powers works.

More importantly, perhaps, that’s how separation of powers is supposed to work. At the time of writing, the United States is not in extremis — and nor are its political arrangements historically egregious. Instead, the system is humming along nicely. There is little point in having a written constitution if the president can merely free himself from its restrictions when he deems them irresponsible. Nor, for that matter, is there much virtue in the people’s sending men and women to Washington to serve as a check on the president if the very act of being checked provokes him into circumventing the rules. Which is to say that Obama is irritated not with his inability to deal with imminent catastrophe, but with business as usual, and his lamentations amount not to a Churchillian roar but to a whine. On a human level, one can empathize. It is never nice to be thwarted when you believe that you have the only acceptable answers. On a legal level, though, one can do little more than shrug. Congress was elected, too.

Typically, these principles have enjoyed broad acceptance in America. No doubt they will again. If next year a Republican Senate turns the tables and renders President Obama the “obstructionist,” do we expect to hear Mitch McConnell explaining that he has been forced by Obama’s “unique” intransigence to pass laws without the president’s signature? Will we see a McConnell Senate seeking to form GOP-friendly proto-treaties with other nations? Will the House of Representatives start to issue the pardons that the president won’t on the grounds that they are “too important” to wait for? Might John Boehner begin to command the armed forces and to fly around on Air Force One, justifying his appropriation on the grounds that Obama is uniquely absent on the world stage and that the consequences of his absence are too deleterious to allow? Will the legislative branch announce that it “can’t wait,” and cut the corporate tax rate on its own? Of course not. Clearly, these would all represent intolerable hijackings of the executive branch’s role. One wonders, then, why we are we expected to indulge the practice the other way round. Are appeals to expedience less problematic when the president, and not the legislature, is the one indulging in the seizure? Congress has considered the Dream Act 24 times in the last twelve years. Each time — regrettably, in my view — it has declined to pass it. In what possible universe does this suggest that the president should go it alone?

Evidently, the answer is Barack Obama’s universe, for his are not hollow threats. Having initially assured his critics that he was not an “emperor” or a “dictator” or a “king,” and that in consequence he could not possibly achieve the (laudable) goals of the Dream Act without congressional assent, the president later took to trafficking in the nefarious proposition that he has been “forced” by circumstances to consider extralegal solutions and, thus, to rewrite immigration law on the fly. Elsewhere, he has repeatedly and illegally delayed Obamacare in order to aid his party; backtracked fully on his insistence that Congress, and not the president, decides when military action can be legitimately taken; arrogantly assumed that he can rejigger the tax code without legislative approval; and routinely taken such an expansive view of the executive’s role that he has managed to provoke a divided and fractious Supreme Court into sharp and united admonition. Now, by all accounts, we are on the verge of another two usurpations — one a radical change to the nation’s immigration rules, the other a “treaty” that is not a treaty. Why, pray, if these are both within the president’s bounds, were they not executed before now?

Justifying his infringements, the president typically submits that Congress has in some way abandoned its role, and that he is obliged by expedience to step in. This asseveration rests unsteadily upon the false presumption that Congress’s role is to agree with the executive branch, rather than to make law. It is not. Even if we were to agree wholeheartedly with Barack Obama that Congress’s judgment is poor, it would remain the case that there is no provision in the Constitution that makes the legislature’s absolute role conditional upon its good sense. On the contrary: If the president can’t get Congress to agree to what he legally needs them to agree to, he doesn’t get to do what he wants to do. This is so whether Congress is packed with angels or with clowns. It is so whether Congress adores the president or loathes him, whether it is active and engaged, and whether it is idle and lackadaisical. And — crucially — it is so whether Congress is popular or it is unpopular. Public opinion matters in the American system come election time, mass plebiscites serving as the basis by which our representatives are chosen and our sentiments established into law. But it has no bearing on the day-to-day legal operation of the government, nor upon the integrity of the rules that govern that operation. If one of the elected branches proves recalcitrant, steadfastly ignoring what the voters want, the remedy is electoral, not legal. The integrity of the constitutional order, suffice it to say, is not contingent upon the transient public mood. That way lies chaos.

Knowing that appeals to raw power are jarring to the average ear, those who have taken to defending the president’s imperialism tend instead to sell their wares by introducing complexity where it does not belong. It is the case that some parts of our Constitution are vague and open to interpretation. But not all. Alas, over the last six years, we have been told that there is considerable nuance even in those portions that have been taken for more than two centuries to be utterly straightforward. Does the president have to faithfully execute the laws as they are written? That, apparently, is complicated. Does the ratification of treaties really work in the manner that the Constitution prescribes? Ooh, a tricky one! What about Article I, which makes it clear that all legislative powers belong to the legislature? Sure, but only if Congress behaves itself. Must the executive branch adhere to the established budget and borrowing process, or can it mint trillion-dollar platinum coins if Congress won’t acquiesce with its demands? This too, it seems, is unclear. Can the president deem the Senate to be in recess and make appointments without them? Why not, man? So deeply has this rot set in — and so ready have political opportunists proved themselves to abdicate their responsibilities in favor of political victory — that we have been treated to the sight of a three-term senator and majority whip claiming with a straight face that the president can merely “borrow” congressional power if it is not forthcoming.

He must do no such thing, for an assault on any part of our settlement is an assault on the whole. To the extent that Obama has been accorded political power, he may use it, and use it to the fullest. Beyond that, he is tightly and rightly circumscribed in his authority. As a matter of both propriety and legal rectitude, there can be no place within the American constitutional order for a president to menace Congress with threats. Not now, not tomorrow, not ever. Like Sir Thomas More in A Man for All Seasons, Barack Obama would profit from the recognition that it is for his own good that he is expected to give the Devil the benefit of the law. By demonizing one’s opponents and making legal excuses in result, it is easy to make the men in the cheap seats applaud and holler. But before long, somebody else will be taking the oath, and wondering, as he promise the best of his ability, just what he might put over on the rest.