In a scathing critique of President Barack Obama’s executive actions, a legal scholar and prominent supporter of the president told Congress last month Obama has strayed far beyond his constitutional authority in taking multiple unilateral actions.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, testified before the House Committee on the Judiciary in December.
While Turley said he supported many of the president’s policies, he said he could not subscribe to Obama’s claims of executive power to achieve those ends.
“Despite the fact that I once voted for President Obama, personal admiration is no substitute for the constitutional principles at stake in this controversy,” Turley said in his written testimony. “When a president claims the inherent power of both legislation and enforcement, he becomes a virtual government unto himself. He is not simply posing a danger to the constitutional system; he becomes the very danger that the Constitution was designed to avoid.”
Turley specifically came to discuss what he called constitutional concerns raised by the administration’s recent nonenforcement polices, as well as Obama’s duty to faithfully execute the laws of the United States.
Turley chastised Obama’s actions on an array of fronts, from lifting the general prohibition on Internet gambling to granting waivers for the No Child Left Behind Act – effectively nullifying it, critics said – to refusing to deport individuals who came to the U.S. illegally as children, even though federal law mandates such deportation. Turley also homed in on Obama’s pre-emption of the employer mandate set by Congress in the Affordable Care Act.
Means and ends
Turley said the issue before Congress – separating the merits of the underlying policies from the means used to achieve them – was a difficult one.
“It so happens that I agree with many of the goals of the administration in the various areas where the president has circumvented Congress,” he said. “However, in the Madisonian system, it is often more important how you do things than what you do. We have long benefited from a system designed to channel and transform factional interests in the political system. When any branch encroaches upon the authority of another, it not only introduces instability into the system but leaves political issues raw and unresolved.”
That said, Turley recalled Benjamin Franklin’s favorite saying, that the constitution helps those branches of government that help themselves.
“Each branch is given the tools to defend itself and the Framers assumed that they would have the ambition and institutional self-interest to use them,” Turley testified. “That assumption is now being put to the test as many members remain silent in the face of open executive encroachment by the executive branch.”
Turley said the administration had assembled a range of arguments justifying its decisions: the interpretation of statutory text, agency discretion, the ability of the chief executive to set priorities and to determine the best way to enforce the law. In addition, Turley said the president appeared to rely on an expectation that no one would be able to secure standing to challenge such decisions in court.
“People of good faith can clearly disagree on where the line is drawn over the failure to fully enforce federal laws,” he said. “There is ample room given to a president in setting priorities in the enforcement of laws. A president is not required to enforce all laws equally or dedicate the same resources to every federal program. Even with this ample allowance, however, I believe that President Barack Obama has crossed the constitutional line between discretionary enforcement and defiance of federal law.”
Defending Congress’ defining function of creating and amending federal law is an essential battle, Turley said.
“This is more than a turf fight between politicians,” he said. “The division of governmental powers is designed to protect liberty by preventing the abusive concentration of power. All citizens – Democratic or Republican or Independent – should consider the inherent danger presented by a president who can unilaterally suspend laws as a matter of presidential license.”
Separation of Powers
Turley said Obama’s unilateral actions took away what he called the thumping heart of the Madisonian system: the legislative function of converting disparate factional interests into majoritarian compromises. By stepping in and acting unilaterally, the president polarizes the political system, he suggested.
“In this sense, Congress is meant to be a transformative institution where raw, often competing interests are converted by compromise and consensus,” Turley said. “One of the most striking aspects of the recent controversies involving presidential nonenforcement is that they involved matters that were either previously before Congress or actually under consideration when President Obama acted unilaterally.”
The loss caused by the circumvention of the legislative branch is not simply one branch usurping another, Turley said, but a loss of the most important function of the three-branch system, that is to say, channeling factional interests and reaching resolutions on matters of great public importance.
As important as Obama’s circumvention of Congress when taking action is his refusal to enforce what Congress has passed, Turley said. And, he contended, that has helped give rise to a fourth branch of government.
“The American governmental system is being fundamentally transformed into something vastly different from the intentions of the Framers or, for that matter, the assumptions underlying the constitutional structure,” Turley said. “As I recently discussed in print, we are shifting from a tripartite to a quadripartite system in this age of regulation.”
Turley said the administrative state has shifted the center of gravity in the system to a fourth branch of federal agencies.
“As a result, our carefully constructed system of checks and balances is being negated by the rise of the sprawling departments and agencies that govern with increasing autonomy and decreasing transparency,” he said.
Unnamed and unreachable
In 1790, Turley observed, the federal government had only 1,000 nonmilitary workers. By contrast, he continued, today there are 2,840,000 federal workers in 15 departments, 69 agencies and 383 nonmilitary subagencies, and that doesn’t include federal contractors.
The bottom line is, he argued, that massive growth in the federal bureaucracy has changed the very way our lives are governed.
“Today, the vast majority of ‘laws’ governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats,” Turley said. “To give one comparative measure, one study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations. Adding to this dominance are judicial rulings giving agencies heavy deference in their interpretations of laws under cases like Chevron.”
What’s more, Turley contended, the Supreme Court has added to the executive’s insulation and authority with a ruling that agencies can determine their own jurisdictions – a power he said was previously believed to rest with Congress.
Turley quoted chief justice John Roberts’ dissenting caution: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”
The refusal of the administration to enforce congressionally passed laws only exacerbates the shift to the fourth branch of government, Turley said.
“Federal agencies are becoming practically independent in their operations in assuming new forms of regulatory law and adjudications,” he said. “The refusal to execute those laws enacted by Congress would serve to marginalize the legislative branch further and make the federal government even less dependent on or responsive to that branch.”
None of what Turley had to say was meant to deny the existence of presidential discretion, the professor testified.
“Clearly, for example, the president is allowed to set goals in the execution of laws that place certain public programs above others in priority,” Turley said. “No area of the law has one-hundred percent enforcement. There are discretionary actions that can include staffing and resource allocations with impacts on the level of enforcement in a given area.”
Presidents have also refused to enforce laws they consider unconstitutional, he said, and have offered up through ‘signing statements’ interpretations that have seemed at odds with congressional intent, Even so, he said, the Obama administration has stretched the notion of the constitutional nonenforcement of laws intolerably.
“From Internet gambling to educational waivers to immigration deportations to health care decisions, the Obama administration has been unilaterally ordering major changes in federal law with the notable exclusion of Congress,” Turley testified. “Many of these changes have been defended as discretionary acts or mere interpretations of existing law. However, they fit an undeniable pattern of circumventing Congress in the creation of new major standards, exceptions, or outright nullifications.”
What is most striking about the areas in which Obama has acted, he continued, is that they are precisely the type of controversial questions designed for the open and deliberative legislative process.
“The unilateral imposition of new rules robs the system of its stabilizing characteristics in dealing with factional divisions,” Turley said. “While attorney general Eric Holder has recognized that the judicial branch is ‘the final arbiter of ... constitutional claims,’ he appears less committed to the concept of the legislative branch’s inherent authority.”
In so doing, the Obama administration uses political divisions as an opportunity to stamp its will on the nation’s laws.
“While political divisions would normally be a reason to leave a matter to the legislative process to resolve, it is increasingly being cited as a rationale for circumventing Congress,” Turley said. “Thus, citing gridlock and the failure to correct the law, President Obama has granted widespread waivers to states under the No Child Left Behind Act, effectively nullifying the law in the view of critics. This has been denounced as a circumvention of Congress with the creation of new criteria or conditions by the administration for schools to receive the waivers. This new system is entirely the product of an intrabranch process in circumvention of Congress.”
Obama used a different rationale to delay the employer mandate of the Affordable Care Act, Turley said.
“Yet, the administration cited deference to agencies in implementing regulations and establishing standards for tax and other provisions,” he said. “Despite having four years to implement the law and the statutorily-set deadline, the administration insisted that Congress cannot hold agencies to such schedules. The law itself unambiguously sets January 1, 2014 as the critical date – a matter of considerable debate within Congress during deliberations. There is no express power given to change that date.”
Still, the administration said it had the power to unilaterally ignore those dates, Turley testified, another example of bureaucratic muscle.
“It is another example of the new independence of the ‘Fourth Branch’ and how specific mandates can now be disregarded in the haze of agency deference,” he said. “The Congress could not have been more clear as to the activation date for the law, but the position of the administration would make such provisions merely advisory and subject to the agreement of the president.”
Not even a pretense
When it came to immigration, the administration’s basis for negating statutory provisions lost even the pretense of reasoned authority, Turley said.
Turley said there has long been a general consensus that a president cannot refuse to enforce a law that is considered constitutionally sound. In other words, a president and his subordinates may not lawfully defy an Act of Congress if the Act is constitutional; the constitution can dispense a statute, but the executive cannot.
“Yet, in June 2012, President Obama appeared to exercise precisely this type of ‘dispensing power’ in issuing an order to federal agencies that the administration would no longer deport individuals who came to this country illegally as children despite the fact that federal law mandates such deportation,” Turley said. “In disregarding the statutory language, the administration rolled out a new alternative policy that individuals can qualify for ‘deferred action’ if they had come to the country before the age of 16, have no criminal history, resided in the U.S. for at least five consecutive years, and are either a student or have already graduated from high school, or earned an equivalent GED, or served in the military. Yet, this new, detailed system is the product not of Congress but the internal deliberations of a federal agency. While claimed to simply be an act of prosecutorial discretion, it constitutes a new and alternative immigration process for these individuals.”
And, oops, the administration did it again last August when it announced that deportation would no longer occur for any primary provider for any minor child or the parent or guardian of a child who is a U.S. citizen or legal permanent resident, the professor observed.
“The federal law mandates deportation for individuals in the country illegally,” he said. “While prosecutorial discretion has been cited in individual case decisions, the administration was using it to nullify the application of federal law to hundreds of thousands, if not millions of individuals. Once again, one’s personal view of the merits of such an exception should not be the focus, or even a part, of the analysis. In ordering this blanket exception, President Obama was nullifying part of a law that he simply disagreed with.”
There was no claim of unconstitutionality, Turley emphasized. saying it was a raw example of the use of a ‘dispensing power’ over federal law.
“It is difficult to discern any definition of the faithful execution of the laws that would include the blanket suspension or nullification of key provisions” he said. “What the immigration order reflects is a policy disagreement with Congress. However, the time and place for such disagreements is found in the legislative process before enactment. If a president can claim sweeping discretion to suspend key federal laws, the entire legislative process becomes little more than a pretense. What is most striking is the willingness of some to accept this transparent effort to rewrite the immigration law after the failure to pass the DREAM Act containing some of the same reforms.”
And what about the president’s decision to allow Americans to keep so-called ‘substandard’ health insurance policies for another year despite the requirements of the law?
“The ACA expressly sets the date for compliance that penalizes non-exempt individuals who do not maintain ‘minimum essential’ health insurance coverage,” he said. “Those non-compliant individuals are subject to a ‘[s]hared responsibility payment.’ By saying that states can allow individuals to remain non-compliant after the statutory deadline, President Obama inserted a constructive exemption that would have been the subject of intense political debate at the time of the deliberations.”
Again, Turley said, Obama made the unilateral decision precisely at the time Congress was debating the issue, and after an outcry occurred over what many viewed as the central selling point of the health law, namely, that, if people liked their current policies, they would be allowed to keep them. Then millions lost their policies.
“I will leave others to work through the merits of that controversy,” Turley said. “For my purposes, I am only interested in the fact that a key issue discussed during the debate over the legislation was unilaterally altered after passage. This is an obviously important part of the debate. The law does not expressly give the president the authority to waive the application of the provisions for selected groups. To the extent that the president was claiming that he had the authority to amend the law in this way, I fail again to see the legal basis for such authority.”
While many applauded the president’s unilateral action, Turley said, they did so without considering the implications of such inherent authority for the system as a whole.
“Once again, it is important to divorce the subject of such legislation or the identity of the president from the constitutional analysis,” he said. “The circumvention of the legislative process not only undermines the authority of this branch but destabilizes the tripartite system as a whole. If President Obama can achieve the same result of legislation by executive fiat, future presidents could do the same in negating environmental or discrimination or consumer protection laws.”
Such practices further invest the administrative state with a degree of insularity and independence that poses an obvious danger to liberty interests protected by divided government, Turley added.
“This danger is made all the more menacing by the clear assumption by the Executive Branch that artificially narrow standing rules will insulate the orders from judicial scrutiny and relief,” he said. “With Congress so marginalized and courts so passive, the Fourth Branch threatens to become a government unto itself for all practical purposes.”
In the end, Turley said he does view the president’s actions as even close questions.
“The actions of the Obama Administration challenge core principles of the separation of powers and lack meaningful limiting principles for future executive orders,” Turley concluded. “Clearly, these are times of bitter and intractable divisions between the parties. It is not the first time such divisions have emerged in Congress. However, Madison and others believed that petty partisanship would ultimately yield to common institutional interests when faced with the ‘danger of attack.’ After all, members have a common article of faith. It is Article I of the Constitution and the words:
“‘All legislative powers herein granted shall be vested in a Congress of the United States.’”
Richard Moore may be reached at firstname.lastname@example.org