On a hot day in late July, members of the House of Representatives took to the chambers floor to make a momentous decision: whether to file an unprecedented lawsuit against the president of the United States. The charge was electric. President Obama, they said, had violated his constitutional duty to faithfully execute the law. When the voting closed, the House was 225 to 201 in favor of filing suit. All but 5 Republicans voted in favor — those opposed believed the lawsuit didnt go far enough. Speaker John Boehner chided the Democrats: Are you willing to let any president choose what laws to execute and what laws to change? The substance of the lawsuit was soaked in irony: Republicans, taking a break from trying to repeal Obamacare wholesale, were now suing Obama for not implementing the law fast enough. They held that when the administration delayed the laws employer mandate last year, it violated congressional will — and the presidents own oath to uphold and enforce the laws of the United States. The lawsuit was limited to the delay of the employer mandate because Boehners lawyers believed the narrow charge had the best chance of success in the courts. But House Republicans made clear they believed Obamas overreach was far broader. Rep. Andy Harris (R-MD) said the mandate delay was only one of the many areas he has abused his executive authority. And Rep. Doug Lamborn (R-CO) argued that the worst was yet to come, citing news reports that Obama was planning new executive actions on immigration. These are not lawful actions, Lamborn said. These are the power-hungry actions of a president who refuses to work with Congress. The current argument is about faithful execution of the law, and how much discretion the president has It was a charge that, a few short years before, would have sounded perfectly natural coming from Senator Barack Obama. I taught constitutional law for 10 years, Obama said in March 2008. I take the Constitution very seriously. The biggest problems that were facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And thats what I intend to reverse when Im president of the United States of America. But interviews with academic, legal, and policy experts make clear Obama has done little to roll back Bushs expansion of executive power — and that, instead, hes added a few innovations of his own. The consensus is that hes not the disruptor in terms of presidential power that he purported to be, says Mitchel Sollenberger, a political scientist at the University of Michigan. Instead, hes largely continued consolidating and strengthening it. Many of Obamas own controversial contributions cluster around one main theme: waiving, modifying, or refusing to enforce key provisions in laws dealing with domestic policy. And as he weighs a new executive action on immigration, he seems set to go further yet. In doing so, hell set new precedents that future presidents can cite for even more expansive action. As Congressional dysfunction keeps getting worse and worse, presidents will keep filling the policymaking vacuum left by the legislative branch — and Congress wont be able to stop them. Faithful execution of the law Obama swearing-in Obama is sworn into office, January 20, 2009 (Timothy A. Clary, AFP/Getty) Some liberal commentators have scoffed at the idea that Obama has expanded presidential power. They point to a chart showing the president is issuing executive orders at the lowest rate of any president in the past century. But the raw number reveals little — a single executive order can be extremely consequential, or practically meaningless. Regardless, as Kenneth Mayer of the University of Wisconsin says, Most of the Obama actions that have so exercised Republicans have not been executive orders. In the foreign policy and security realm, Obama has continued many of Bushs most controversial programs — but those actions, like controversial NSA surveillance programs and detention powers, have since been authorized by statute. Bush had grabbed these powers unilaterally, but it was then more or less ratified by Congress, says Andrew Rudalevidge, a professor at Bowdoin College. So Obama can say with a straight face, Im working within statutory authority. He can also say Im working within the laws of war and the AUMF — the Authorization for Use of Military Force Against Terrorists, passed three days after 9/11 and not yet repealed. Obamas escalation of drone strikes, and his legal justification for targeting Americans abroad, are his unique contributions to presidential power here. But GOP leadership has shied away from confronting him on those issues — likely because they think a president should in fact have broad war-on-terror foreign policy powers. Its the domestic front where House Republicans have leveled their harshest objections. Article II of the Constitution states that the president must take Care that the Laws be faithfully executed, in whats known as the Take Care Clause. Many House GOP committee hearings, and much conservative commentary, have honed an argument that Obama has failed to faithfully execute the laws in three key areas: waivers to the No Child Left Behind education law, the delay of Obamacares employer mandate, and the deferral of deportations for young unauthorized immigrants. The current argument is about faithful execution of the law, and how much discretion the president has, says Rudalevige. Each issues legal and political specifics are different — and for all three, even some nonpartisan experts note that Obamas actions have gone further than those of past presidents. There are some ways here, says William Howell, a political scientist at the University of Chicago, in which Obama has made kind of unique contributions, and really extended his executive authority in ways his predecessors havent done. No Child Left Behind waivers: A new frontier Obama and Arne Duncan Obama and Education Secretary Arne Duncan, February 9, 2012. (Saul Loeb, AFP/Getty) The authors of the No Child Left Behind Act, signed into law in January 2002, took the laws title quite literally. By the year 2014, the law states, 100 percent of every schools students would have to score as proficient in reading and math on state tests. Schools where this didnt occur for two years would be marked as underperforming and face serious sanctions. Most education experts viewed the 100 percent goal as aspirational, and perhaps motivational, but not remotely realistic. It was widely expected that this provision of the law would be modified or abandoned by Congress before the 2014 deadline actually kicked in. But that never happened. The Democrats never got around to it when they controlled both chambers, and when the GOP took the House in 2010, NCLB reforms werent able to break through the gridlock. States were starting to get nervous. As it exists now, No Child Left Behind is creating a slow-motion train wreck for children, parents and teachers, Arne Duncan, the Secretary of Education, said in June 2011. So Duncan offered states a way out. The No Child Left Behind Act allowed the Secretary of Education to waive any statutory or regulatory requirement of the law for states, local agencies, or school districts that applied. This power was intended to allow for some experimentation on the local and state levels, and the Bush administration used it many times. Since the power was so broad, the Secretary could waive the 100 percent proficiency requirement, and save states from the penalties. The paralysis of the legislative branch lets the president step in and take new actions that look a lot like writing law But the administration went further than simply waiving the requirements. Inspired by its experience with Race to the Top — a $5 billion pot of stimulus money that it asked states to compete for by adopting various administration-preferred reforms — it decided to use the waivers to spur further change. Adopt the reforms we want, Obama and Duncan said, or we wont rescue you from the NCLB penalties. States eagerly applied for the waivers, and by 2014, 42 had gotten them. The New York Times asked whether the widespread granting of waivers meant No Child Left Behind had been essentially nullified. The Obama administration took the conditions it was setting seriously. Earlier this year, when Washington states legislature failed to approve one of the administrations waiver requirements, Duncan announced that the states waiver would be revoked. The laws penalties would kick in, and what Duncan earlier called a train wreck would ensue — because the state didnt do what the administration wanted. Several experts agreed that the waivers alone would have been unremarkable, but that Obama using them to force policy reforms with no basis in the law is something new. He used what was, in my view, a waiver provision for modest experiments and transformed it into a platform for the redesign of the statute, says Bruce Ackerman, a professor at Yale Law School. Ackerman believes the NCLB waivers were Obamas most troubling use of executive power on the domestic front. Howell agrees, saying, This strikes me as a new frontier. But its also important to note that Obama isnt asserting any new formal powers here. The waiver power was inarguably granted to him by Congress — hes just using it in a way they didnt expect. Furthermore, hes using it to fix a problem that the original law left unsolved. And if members of Congress find this offensive, they have the power to change or eliminate the waiver provision. The problem is that a gridlocked and polarized Congress is unlikely to be able to make this happen. So here, as with other issues, the paralysis of the legislative branch lets the president step in and take new actions that look a lot like writing law. vox/2014/9/9/5964421/obama-lawsuit-republicans-abuse-of-power
Posted on: Sun, 23 Nov 2014 23:31:51 +0000
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