Conservatives are in high dudgeon about what they see as President Obama’s arrogant lawlessness. He has usurped congressional authority and violated his duty to faithfully execute the law, they contend, by ignoring statutes with which he disagrees and summarily rewriting the problematic parts of those he likes.
“Under President Obama, inconvenient or unpopular legal requirements have repeatedly been swept aside by executive fiat,” Republican Sen. John Cornyn of Texas wrote in National Review.
There is an undeniable element of political theater here. Contrast the howls of Republican outrage at Obama’s move to delay enforcement of the Affordable Care Act’s employer mandate for a single year with reaction to Mitt Romney’s heralded plans, on day one of the Romney administration, to grant waivers from Obamacare to all 50 states.
After all, Obama’s moratorium came in the service of taking care that the law is implemented smoothly. Romney’s goal was to dismantle it by, well, executive fiat. Cornyn wasn’t crying foul then.
Still, the question of whether any president is overstepping his authority is too important to relegate to adolescent, he-would-have-done-it-too arguments. So let us examine the conservative indictment of Obama by dividing it into three counts: abusing prosecutorial discretion, regulatory flexibility and constitutional power.
The most recent example of the Obama administration’s use of prosecutorial discretion involves Attorney General Eric Holder’s announcement that the Justice Department would avoid triggering mandatory minimum sentences in low-level drug cases.
An even more controversial moment came when the Department of Homeland Security announced that, given limited resources, it would use prosecutorial discretion to delay deportation proceedings for certain illegal immigrants who were brought to the United States as children.
Can the president simply choose not to enforce any law with which he disagrees — say, announce that he would no longer prosecute marijuana or gun-possession crimes? Brett Kavanaugh, a George W. Bush appointee on the federal appeals court in the District of Columbia, wrote recently that the president “has clear constitutional authority to exercise prosecutorial discretion to decline” to bring such cases.
That position feels like a stretch — employing discretion is one thing, ignoring an entire statute another. But Kavanaugh’s position underscores the relative modesty of the Obama administration’s supposedly lawless moves on mandatory minimums and deportations.
On count two, regulatory flexibility, Obama rankled Republicans earlier by using his waiver authority under welfare reform. But he has sent them over the edge on health care.
The administration defends its chief tweak, delaying enforcement of the employer mandate for a year, as a routine exercise of the Treasury Department’s discretion to grant “transition relief” in administering complex tax laws.
Yet the examples the administration proffers seem small-bore compared to the employer mandate extension. For example, when excise taxes on aviation were reinstated retroactively to July 23, 2011, Treasury decreed that they would not be imposed on purchases made after July 22 and before Aug. 8. Big whoop.
This is not to say that the administration lacks legal flexibility to make various fixes to the health-care law — just to underscore the scale of its interventions. If Obama can suspend enforcement of the employer mandate for a year, could President Romney have decided not to implement the individual mandate for eight?
The final count in the conservative critique involves the president’s recess appointments. Obama has used this constitutional power more sparingly than recent predecessors; President Clinton made 139 recess appointments, President Bush 171 and Obama so far only 32.
But Obama has also been bolder in deploying the power, acting even when the Senate was holding brief sessions designed to frustrate recess appointments. Bush refrained from this in-your-face move, although, notably, his Justice Department concluded that it would have been constitutional.
The administration argues that Obama acted with restraint — the appointments were only to agencies at risk of not functioning — and in the face of Senate intransigence. But another president could use this tactic to gut the advice-and-consent requirement. The legality of Obama’s appointments is now before the Supreme Court.
The constitutional tug-of-war between Congress and the executive arises in every administration. The tensions are especially acute when power is divided between the parties, and even more inflamed in an era of relentless obstructionism. Presidents, as Obama has acknowledged, are driven to take unilateral action when the normal legislative process would be the better route.
Obama is not the rogue usurper of conservative imagining. Rather, he has been understandably aggressive in wielding executive power while remaining within the lines. Still, those lines bear constant watching, whichever president holds office.