John Yoo is the Emanuel Heller professor of law at University of California at Berkeley, an American Enterprise Institute scholar and a former Justice Department official in the George W. Bush administration. He is co-editor of the forthcoming “Liberty’s Nemesis: The Unchecked Expansion of the State.”
President Obama has all but declared that he will spend his last year in office acting unilaterally to advance his agenda. But his basic misunderstanding of presidential power will render his gains hollow, and his excesses will create the very tools to undo his legacy.
Obama’s determination to ignore Congress and rely solely on his presidential power has become the signature of his governing style. He has reshaped immigration policy by refusing to enforce the deportation of millions of illegal aliens, unilaterally suspended parts of his signature health-care law to make it more politically palatable and entered into international agreements on Iran’s nuclear program and on climate change without congressional approval.
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Obama intends more of the same for the next 11 months — White House Chief of Staff Denis McDonough promised a year of “audacious executive action.” This attitude betrays a fundamental constitutional error. Obama has aimed unilateral action at domestic policy, where the Constitution gives him little power, and shrunk away from the areas where the Constitution gives him the most strength: national security and foreign policy.
Article II of the Constitution vests the president with the “executive power” of the federal government, makes him commander in chief and tasks him with the duty to “take care that the laws be faithfully executed.” The Framers concentrated the executive power in one person because only a single individual could guide the nation through emergencies and crises, which are often acute in foreign affairs and national security. As Alexander Hamilton explained in Federalist No. 70, an energetic executive “is essential to the protection of the community against foreign attacks.” Only the president can respond with “decision, activity, secrecy and dispatch.” Congress can check executive policy through its funding power, but its core function of legislative deliberation gives it little ability to grapple with sudden crises and fast-changing foreign events.
The Framers reversed this relationship when it comes to issues at home. They granted the great powers of commerce, spending and taxation to Congress. Unlike foreign affairs, domestic affairs rarely demand instant executive action. Our government has far more time for “reflection and choice,” in the words of Federalist No. 1, while the states regulate most matters of daily life. The executive’s role is secondary: to “take care that the laws be faithfully executed.” A president may decline to carry out congressional commands only when they violate the Constitution, because the Constitution is the highest form of law. Enforcement includes some prosecutorial discretion due to scarce time and resources, but not to the point of refusing to enforce laws simply because of their policies.
Presidential power in domestic affairs extends no further. As Hamilton explained in Federalist No. 75: “The execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate.”
President Obama’s policy initiatives have upended this basic constitutional structure. On domestic policy, the president has failed his enforcement obligation by picking and choosing which laws to follow, effectively overriding Congress’s policy choices. But in foreign policy, he has refused to act where the Constitution expects presidential initiative. While Congress can block executive adventurism, it cannot force the president’s hand. Only the chief executive commands the armed forces and intelligence agencies, and only he can conduct diplomacy.
Obama’s refusal to use his presidential power where it is best suited has set back U.S. interests and accelerated global disorder. The Syrian civil war, the rise of Islamic State, the collapse in Iraq, the drawdown in Afghanistan, the Russian seizure of Crimea, the rise of Tehran and Chinese encroachments in the South China Sea have brought home the bill of foreign passivity.
Obama’s upending of the Constitution’s structure and limits may prove its own undoing. The next chief executive can suspend, and then repeal, all of the executive orders and regulations of the past seven years. He or she could terminate the Iran nuclear deal and the climate change pact; reinstate enforcement of the immigration laws; and fully reveal Obamacare’s distortions of health care. The further Obama stretches his powers to reach for a legacy, the more powerfully his successor can snap the Constitution back into its proper shape.
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