“These unilateral executive orders, whether on government-backed student loans and mortgages or FDA oversight, are intended to sidestep the consent of the governed, and as a result they overstep the President’s constitutional boundaries. Obama can rhetorically dress this up however he likes, but his actions are not predicated on the consent of the governed, they are fueled by his desire to maintain and expand power. This is not the rule of law, but the rule of man.
“Obama is just following the playbook of the Center for American Progress, which had argued for the White House to use executive orders and other regulations to advance its agenda after Democrats lost control of the House of Representatives in the November elections. This is all designed to get around the political process, and has occurred repeatedly under Obama’s watch, whether with the EPA’s carbon endangerment finding or the unilateral implementation of management-labor forums for the federal civil service.”
The full press release is at Obama’s executive orders overstep.
Phil Kerpen’s recent book Democracy Denied: How Obama is Ignoring You and Bypassing Congress to Radically Transform America — and How to Stop Him holds other lessons of how presidents — from both political parties — overstep. In the introduction Kerpen gives us a history lesson on a topic that doesn’t receive much discussion in public: the grab for executive power by presidents through the use of “signing statements.”
Elizabeth Drew made the case against Bush’s abuse of executive power in a lengthy New York Review of Books piece called “Power Grab.” She specifically highlighted Bush’s use of signing statements (a technique to object to elements of a law while signing it, and refusing to enforce those elements), the detention of foreign combatants at Guantanamo, and warrantless wiretaps. She concluded that Bush was a tyrant.
Kerpen explains how the view from the oval office can make one forget campaign promises:
Even the Bush practice that raised the most ire — the use of signing statements — was embraced by Obama just weeks after he took office, when he said: “it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for presidential signature includes provisions that are subject to well-founded constitutional objections.” Contrast that with what Obama had said about signing statements on the campaign trail: “This is part of the whole theory of George Bush that he can make laws as he is going along. I disagree with that. I taught the Constitution for 10 years. I believe in the Constitution and I will obey the Constitution of the United States. We are not going to use signing statements as a way of doing an end run around Congress.”
Later in the chapter Kerpen describes another critic of Bush’s use of executive power and how things would change with the election of Obama:
One of the harshest critics of executive power under Bush, Yale law professor Bruce Ackerman, dismissed the overly simple view of many on the left regarding Obama ending abuse of power. After a warning about an authoritarian takeover, he says:
This grim prognosis depends on structures, not personalities, permitting us to move beyond knee-jerk reactions to the politics of the day. Most obviously, the election of President Obama has, for many, sufficed to dispatch any serious doubts about the system: Good-bye, imperial presidency; hello, Americas first black president, and the nation’s remarkable capacity for constitutional renewal!
But a paragraph later he falls into the very trap he warned against, absurdly writing of Obama:
He may be charismatic, but he is no extremist: there is little chance of his running roughshod over congressional prerogative, even those as indefensible as the filibuster. But the next insurgent president may not possess the same sense of constitutional restraint.
Sadly, contrary to the ideologically blinded analysis of most observers from the left, all of the elements of excessive executive power that they feared from Bush have continued — or worsened — under Obama. On top of which he has used the financial crisis as an excuse to seize control — without Congress’s approval — of the energy supply, industrial activities, the Internet, and labor policy.
Some of the loudest voices opposing Bush’s use of executive power are now cheering for Obama to push things much further. It’s different when its your guy in charge.
Or: the more things change, the more they stay the same.