Don't Republicans Abuse Executive Power?

A flawed indictment of presidential lawlessness


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.