Democracy Dies in Darkness

In Theory | Opinion

Obama is maintaining the balance of powers, not overturning it

By Brianne Gorod

January 12, 2016 at 10:57 AM

President Obama pauses while delivering remarks at an event held on Jan. 5 to announce executive actions to reduce gun violence. (Michael Reynolds/European Pressphoto Agency)

Each week, In Theory takes on a big idea in the news and explores it from a range of perspectives. This week we're talking about executive power. Need a primer? Catch up here.

Brianne J. Gorod is appellate counsel at Constitutional Accountability Center. Find her on Twitter: @BrianneGorod.

Every time President Obama unveils a high-profile executive action, conservative critics act as if he trampled the Framers' vision of the Constitution. When the president recently announced his new executive action on guns, House Speaker Paul Ryan (R-Wis.) accused him of a "dangerous level of executive overreach." Responding to Obama's executive action on immigration, Sen. Ted Cruz (R-Tex.) said the president was acting like a "monarch" and defying the Framers' efforts "to limit executive power."

The critics could not be more wrong: These actions don't disrupt the Constitution's balance of powers; rather, they ensure that the balance of powers continues to work even as our nation grows larger and more complex — just as our Founders intended. ​ Moreover, they reflect the same types of decisions about how to enact laws that administrations under both parties have long made so that our government works effectively.

[Other perspectives: Imagine there's no Congress]

All too often, accounts of our nation's founding skip from our experiences under British rule, which ended in 1776, to the drafting of the Constitution in 1789. Such accounts omit a critical part of our national story: the Articles of Confederation. It's not surprising that the Articles are readily forgotten; after all, that government lasted less than 10 years, from 1781 to 1789. But the reason it fell apart so quickly is relevant to contemporary debates about executive power: The Articles government failed in part because there was no executive branch, making the federal government too weak to be effective.

The Framers sought to remedy this deficiency when they convened in Philadelphia to write our current national charter. As Alexander Hamilton (yes, that Hamilton) wrote, "all men of sense will agree in the necessity of an energetic Executive." And so the Framers ensured that our new national government would have a strong executive branch headed by a single president, and they provided that this new leader should "take care that the laws be faithfully executed."

That clause confers on the president both a responsibility and a power — the responsibility to respect the laws that Congress passes and the power necessary to ensure that that those laws are effectively implemented and enforced.​ It is impossible for the president to fulfill that responsibility without exercising executive power. After all, the federal laws now on the books comprise tens of thousands of pages; executive branch officials necessarily must make decisions about how to resolve those laws' ambiguities and how to weigh competing priorities in an effort to best achieve Congress's intent.

When the Obama administration provides clarity on who is "engaged in the business" of selling guns — and who is thus required to carry out background checks — it is simply putting into action the statutory language passed by Congress, making sure gun laws are "faithfully executed." Similarly, when the administration directs Department of Homeland Security officials to exercise discretion, on a case-by-case basis, to defer removal of certain immigrants, it is simply exercising discretion provided in the immigration laws and setting enforcement priorities to make sure laws are implemented as effectively as possible.

Some of the president's critics, who concede that someone must make these decisions, have suggested that the problem is not the exercise of discretion, but rather the formal announcement providing guidance regarding how that discretion should be implemented. According to these critics, this kind of formal announcement is too close to lawmaking, a power that the Constitution grants to Congress. Not so. The president's decision to provide this sort of guidance simply means that discretion is exercised in a more fair and equitable way — and it's more transparent, both to the people who are subject to the rules and to the general public.

That's good not only for the rule of law, but also for our democracy. If people don't like what federal officials are doing, there's no question about who is responsible and voters can act upon that knowledge at the ballot box.

There are limits to executive power, of course. As the Supreme Court has recognized, the executive branch cannot simply "abdicate" its responsibility to enforce the law. And as a society, we should remain ever watchful to make sure no presidential actions disrupt the balance of powers. But so far, President Obama's executive actions don't come anywhere close to doing so.

Explore these other perspectives:

Adrian Vermeule: Imagine there's no Congress

Elizabeth Slattery: Obama can't rewrite the law

John Carey: Strong presidencies may threaten democracy. Luckily, we don't have one.

John Yoo: Obama is upending the role of the presidency


Brianne Gorod, who clerked for Justice Stephen Breyer and worked in the Justice Department’s Office of Legal Counsel, is appellate counsel at Constitutional Accountability Center.

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In Theory | Opinion

Obama is maintaining the balance of powers, not overturning it

By Brianne Gorod

January 12, 2016 at 10:57 AM

President Obama pauses while delivering remarks at an event held on Jan. 5 to announce executive actions to reduce gun violence. (Michael Reynolds/European Pressphoto Agency)

Each week, In Theory takes on a big idea in the news and explores it from a range of perspectives. This week we're talking about executive power. Need a primer? Catch up here.

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