Will no one rid me of this troublesome priest?—King Henry II
Why work with the Presidency when the man in office thinks he can simply change lawfully enacted legislation at a whim?
The President of the United States went to Minneapolis the other day, where he gave a speech complaining about Republicans in Congress who stand in the way of what he wants to do. This excerpt is from the White House website:
“And, now, some of you may have read—so we take these actions and then now Republicans are mad at me for taking these actions. They’re not doing anything, and then they’re mad that I’m doing something. I’m not sure which of the things I’ve done they find most offensive, but they’ve decided they’re going to sue me for doing my job. I mean, I might have said in the heat of the moment during one of these debates, ‘I want to raise the minimum wage, so sue me when I do’.” (Laughter.) “But I didn’t think they were going to take it literally.”
With profound apologies to William Shakespeare, Barack Obama seems to have entered a Lear-on-the-heath phase of his presidency, raving at his enemies. Or perhaps it’s underappreciated Coriolanus
“They don’t do anything except block me,” the impatient president went on to the citizens of Minneapolis. “And call me names. It can’t be that much fun.” (Laughter.)
Mr. Obama is right about that. His presidency hasn’t been much fun. Not for Republicans, not for a lot of congressional Democrats. Or for the Washington press or even comedians.
Mr. Obama doesn’t do Washington politics, either because he doesn’t know how or he disdains people who do. At a Cabinet meeting in January, Mr. Obama said: “I’ve got a pen and I’ve got a phone.” Thus was born Mr. Obama’s theory of presidential authority.
The pen-and-phone presidency is generally attributed to current White House cardinal John Podesta and a 2010 paper, “The Power of the President,” published by the Center for American Progress. In its forward, Mr. Podesta, then CAP president, wrote: “The U.S. Constitution and the laws of our nation grant the president significant authority to make and implement policy.” Despite references to executive administrative authority, that is the last time the phrase “U.S. Constitution” appears in the Podesta paper.
But someone in the White House legal shop soon may have to stay late writing a Constitutional argument more compelling than Mr. Obama’s bland assertion this week that he only does these things when “Congress chooses to do nothing.”
The lawsuit Mr. Obama laughingly referred to in Minneapolis is the one House Speaker John Boehner plans to file, reasserting Congress’s role in the Constitution’s separation of powers provisions. Its target is Mr. Obama’s more than 30 unilateral alterations of the Affordable Care Act’s provisions, plus routine revisions, with no congressional approval, to other laws, such as No Child Left Behind.
Several times this week, the president heaped ridicule on the Boehner lawsuit. He did so with the ink barely dry on the Supreme Court’s remarkable 9-0 decision in NLRB v. Noel Canning striking down Mr. Obama’s theory of recess-appointment authority.
One wonders what amusements the courts will find when they compare the pen-and-phone presidency with the text of the Constitution to which Mr. Podesta alluded.
Everyone knows the Constitution’s first sentence: “We the people” and all that. What follows immediately in the text is this: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
You don’t have to be a Scalian to know why the Founders thought the locus of legislative authority should be Article 1, Section 1. Mr. Obama reduces these matters to mockery. “Instead of trying to mess with me,” the 44th president said in Minneapolis, Congress should be passing his bills. “I’m happy to share the credit.”
More and more, Mr. Obama’s speeches reflect the progressives’ impatience with politics of any sort and their preference for policy by imposition. Mr. Obama, though, goes further. He seems unable to admit the very idea of political disagreement with him, as he so often puts it.
In 2010, the Obama cap-and-trade legislation to limit carbon emissions failed in the Senate because Democratic senators from the coal-reliant Midwest and South refused to support it. They cited the hardship it would impose on their states.
Those Democrats opposed cap-and-trade because they represent constituencies—voters—who oppose the economics of Mr. Obama’s carbon policy. This political tension, inherent to the American political system, is inconvenient to Mr. Obama. So in June the Obama EPA announced a 30% reduction in carbon from U.S. power plants. West Virginia’s miners can eat their coal.
If congressional Republicans had even minimal institutional trust in the president, Mr. Obama would be able to assemble a majority to pass immigration reform. He can’t, or won’t, and so he rants. More than a few Americans watching parades pass by this weekend will recall that one man’s whim as the way we make laws has no support in the U.S. Not now, not ever.
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