Executive Power

Don't Republicans Abuse Executive Power?

A flawed indictment of presidential lawlessness

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Last week the House of Representatives passed yet another bill with an awkward, acronym-enabling title: the Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law Act. The ENFORCE the Law Act (get it?) would allow either chamber of Congress to authorize litigation aimed at correcting the president's "failure to faithfully execute the laws."

While the bill's name is ridiculous and its mechanism is dubious, the basic premise of its supporters, almost all of whom are Republicans, is correct: As the House Judiciary Committee's report on the bill puts it, Obama has engaged in a "pattern of overstepping [his] constitutional bounds." But so did his Republican predecessors—a fact the report seems designed to obscure.

"Although President Obama is not the first president to stretch his powers beyond their constitutional limits," the committee's Republican majority says, "executive overreach has accelerated at an alarming rate under his Administration." That claim is hard to assess, since the report barely acknowledges prior presidents' abuses.

The Republicans' clearest examples of Obama's lawlessness relate to his amendment of the Patient Protection and Affordable Care Act. Obama has delayed the requirement that employers provide government-approved medical coverage, allowed the continued sale of noncompliant health plans, and extended "premium assistance" tax credits to people who obtain insurance through the federal exchange—all without statutory authority.

Republicans are also on solid ground in criticizing Obama's recess appointments to the National Labor Relations Board, which two federal appeals courts have said violated the Constitution's "advice and consent" requirement by cutting the Senate out of the process. But the Republicans neglect to mention that the logic of those rulings, which say bypassing the Senate is permissible only between congressional sessions, condemns past appointments by presidents of both parties.

The legality of Obama's immigration policies is hazier. The Republicans concede the president has considerable leeway in deciding how to enforce immigration law, and focusing on illegal immigrants with criminal records seems to fall squarely within that authority. But Obama's Deferred Action for Childhood Arrivals program arguably exceeds his enforcement discretion by creating a general exemption similar to the one that would have been established by the DREAM Act, which Congress has repeatedly declined to approve.

Republican complaints about Obama's enforcement of the drug laws are the weakest part of their case against him. The two policies they criticize do not flout the law, and they are avowedly aimed at ensuring proper use of scarce federal resources.

Federal prosecutors have a great deal of discretion (for good and ill) in deciding whether and how to charge people who have broken the law. Attorney General Eric Holder took advantage of that discretion by instructing prosecutors that charges against certain low-level, nonviolent offenders should omit references to drug weight that would trigger mandatory minimum sentences.

Similarly, the Justice Department's guidance regarding marijuana businesses that comply with state law lists eight criteria for deciding which offenders to target and warns that other, unmentioned factors may justify prosecution when it "serves an important federal interest." Contrary to what Republicans claim, this policy does not exempt people in certain states from the prohibitions of the Controlled Substances Act.

The most striking aspect of the executive excesses cited by Republicans may be what they leave out. Why no mention, for example, of the way Obama misused money meant for financial institutions to bail out the car industry? Perhaps because this blatantly illegal diversion of congressionally allocated funds was initiated by George W. Bush.

Partisanship likewise helps explain why the committee report explicitly eschews discussion of presidential abuses justified in the name of national security. Those include some of Obama's most troubling power grabs, such as routinely collecting innocent people's phone records, going to war without congressional authorization, detaining terrorism suspects indefinitely without trial, and killing people he unilaterally identifies as enemies of America. But as Bush showed, national security is a bipartisan excuse for ignoring the law.

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37 responses to “Don't Republicans Abuse Executive Power?

  1. The Republicans’ clearest examples of Obama’s lawlessness relate to his amendment of the Patient Protection and Affordable Care Act.

    I shall henceforth spin this as Republicans wanting Obamacare enforced as written because they think it’s so great.

    1. Exactly, never horde rope when your enemies are busy tying knots.

  2. WHERE IS MY FUCKING COMMENT?!?!?!

    1. With a whole pile of mine in a tree somewhere.

      1. They bury those comments and quite often forget to dig them back up. One day there will be a whole forest of H&R comment trees and you can say you helped build that.

        1. Our comments are jaunting through space-time.

          1. And they just left the solar system.

          2. Were they banned from all space and time?

        2. You didn’t build that!

    2. Apparently the squirrels are still on their coke bender.

    3. impossible! what i’ve learned from libertarians is that only government run websites have problems. maybe Reason mag has secretly i’ded you as an element of the eitc moocher class and relegated your comments to the nether zone between its blog ads for newsmax and foxnews.

  3. I seek to overstep my commenting bonds.

  4. I’m sorry but I don’t see how writing a law to tell people to follow the law makes any sense. If I am ignoring current laws, why would I care about future laws? Congress trying to pass this law is the same as waving a flag that says “We are impotent”.

    1. I’m sorry but I don’t see how writing a law to tell people to follow the law makes any sense.

      The bill provides an expedited means for Congress to initiate a lawsuit and isn’t merely “a law to tell people to follow the law”

      1. Congress’ enforcement power doesn’t lie in filing lawsuits, it lies in the power of the purse and in impeachment. This law is only because they are too cowardly to go the routes the constitution gave them, and want the judicial branch to provide enforcement on their behalf.

        1. This law is only because they are too cowardly to go the routes the constitution gave them, and want the judicial branch to provide enforcement on their behalf.

          Better to have the judiciary do their jobs than do it themselves and look ‘mean.’

        2. Exactly. That is why I put impotent. They have tools if the president breaks the laws, they refuse to use them. This bill is red meat for the base so they can look tough but actually do nothing.

          1. This bill is red meat for the base so they can look tough but actually do nothing.

            I’m curious. Do you think that if the HOR brought articles of impeachment it would “do something”?

        3. This law is only because they are too cowardly to go the routes the constitution gave them, and want the judicial branch to provide enforcement on their behalf.

          Regardless of whether you know the motivations behind the bill it is still accurate that: the bill provides an expedited means for Congress to initiate a lawsuit and isn’t merely “a law to tell people to follow the law”

  5. But the Republicans neglect to mention that the logic of those rulings, which say bypassing the Senate is permissible only between congressional sessions, condemns past appointments by presidents of both parties.

    I don’t think so. Previous appointments were actual recess appointments made when the Congress was actually in recess. These appointments were made when the Congress was still in session but Obama declared that they really were in recess and made the appointments anyway.

    That statement totally misses the issue of the NLRB case. The case was not about the legality of recess appointments. The case was about who has the authority to say when Congress is in recess for the purposes of the clause. Obama claimed he as President could decide what was a real “recess” and what was not. No previous President of either party had ever tried such a thing.

    That is sloppy writing.

    1. Obama claimed he as President could decide what was a real “recess” and what was not.

      Really? Obama claimed that? Why the fuck aren’t this man’s remains currently gibbeted from the top of the Washington Monument?

      1. Maybe I misread the story. But as I remember it, the Republicans in Congress didn’t want Obama to have a recess appointment. So the Republicans in the Senate managed to schedule enough stuff to keep the Senate technically in session when it normally would have been in recess. Obama basically said, “fuck you this is a recess” and appointed the NLRB people anyway.

        1. Yes. The Senate had someone gavel the session and close it perfunctorily. The issue is now before the Nazgul and there should be a ruling pretty soon.

          1. I would be shocked if Obama wins. The question is who has the authority over the rules and workings of Congress, Congress or the President? If it is the President, our whole system of separation of powers goes up in smoke. If the President can tell the Senate when it is and is not in “recess”, why can’t he tell them how many votes are needed for cloture or dictate any other rule he wants?

            1. The question is who has the authority over the rules and workings of Congress, Congress or the President?

              I think Article 1, Section 5 answers that question.

              The only time recess is mentioned in Article 2 is in Section 2:

              The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

              It should be an easy decision on the Court’s part.

              1. It should be an easy decision on the Court’s part.

                You’re forgetting about the secret FYTW clause written on the back of the constitution in invisible ink.

                1. “FYTW clause”

                  This explains so much…

      2. Yes, that is exactly what he did.

        I assume your other question is rhetorical.

  6. so because Repubs didn’t always eat their own dog food means they can’t call bullshit on Obama? Really, Jacob?

    1. Then there is that. How is the fact that Republicans once did it too, which I don’t think is actually true at least with regard to the NLRB appointments, relevant to this discussion?

      Obama has consistently broke the law. He is the current President. Similar behavior by past Presidents of either party is not relevant. I guess Jacob thinks that Obama’s abuse of the IRS is okay since Nixon tried to do the same thing.

      1. I am not sure Sullum is saying that. He does acknowledge that Obumbles is a criminal but the point of the article is to point out the republicans hypocrisy, which is breathtaking.

        The reason this is relevant is that the instant the same republicans complaining about Shitweasels lawlessness get their hands on power we can expect them to do more of the same.

        1. The best way to deter them from doing that is to slam the people who are breaking the law right now. The worst way to deter them is do what Sullum is doing and use previous poor behavior as an excuse for bad behavior now.

          If Obama can say “they did it too”, so can future Republicans.

          1. Obama can respond to all this by saying, I know you are but what am I ? And Congress replies, I’m rubber and you’re glue…

            1. So I got the car last Friday Mainer. I love it. it is just fucking bonkers. I have had to work every day since getting it and haven’t even had a chance to play with it much. But I still love it.

              I can totally see why people love the old ones so much. This car is in many ways so tame, but when you want it to be it is a loud, nasty hooligan of a car. Just insane fast. You just want to floor it all of the time. It handles so well. I love the sound of the engine.

              As much as I love it, part of me wants to pay it off in a few years, sell it, and buy an old one like you have. That would be even louder and more crazy. The car just makes me deliriously happy.

  7. frack! can whatever anarcho-capitalist, master-of-the-universe website administrator who runs this website please fix the commenting space. my private sector phone device from a 400 billion dollar company can’t post a text message to the preeminent magazine of right-wing capitalism.

    1. Maybe you should try it on your government phone?

  8. Over reaching authority is not a partisan issue. It is a constitutional issue. So what if the unintended consequences hinder the next republican President. Great!
    Perhaps, the next Republican congress can vote 51-49 to eliminate the ACA. Sure the madman, Obama can veto it, but then the question is how many times can he veto it. Our politicians are small minded and I wouldn’t be surprised if they spent two years on the same bill over and over. . . .

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