The following piece will be appearing in the coming days in several newspapers in my conservative congressional district. -- Andy Schmookler
Republicans in Congress have called President Obama a tyrant for
using executive orders to advance policies he favors. A challenge to one of his
executive orders – on immigration –
has reached the Supreme Court. They claim that the president exceeded his authority.
I don’t know whether the president exceeded his authority. Good
arguments have been put forward on both sides. (My big hope is that the Court
does not rule 5 to 4, with five Republican-appointed justices on one side and
four Democratic-appointed justices on the other. That would undermine the notion that the
Supreme Court is governed not by partisan allegiance but by the Constitution
and the law.)
Whatever the court rules, would it be right to condemn Obama for
going too far with executive orders?
Obama has
issued such orders at a slower rate than any president in the past century. But
beyond the sheer numbers — lower than those for George W. Bush, Bill Clinton
and Ronald Reagan — any discussion of
this president’s use of executive orders should take into account the
political context of these years.
It is well-established that the Republicans decided even before
Obama was inaugurated, in 2009, to do all they could to make the president
fail. But it was not until after the election of 2010, when the Republicans
took control of the House, that they achieved the power to obstruct everything
the President proposed.
And it’s not as though the issue has been anything “extreme”
about his proposals.
Republicans have fought the president even when he advocates
policies that originated on their side. “Cap and Trade,” for example, was once a Republican idea. So was
Obamacare. It originated in the conservative Heritage Foundation, was proposed by Senate Republicans as an
alternative to Hillary Clinton’s plan for health care reform in the 1990s, and was
implemented at the state level by a Republican governor of Massachusetts
named Mitt Romney.
Nothing that Obama has proposed on any issue has been radical.
None of his ideas – whether they are good or not – has been outside American
policy thinking of the past two or three generations.
So when President Obama turned to executive orders, it was
because he had been deprived of the usual means — legislation -- by which an
American president can give the nation the leadership the American people have
hired him to provide.
Whether you applaud Republican obstruction, or consider it a
violation of American political norms, the question
should be asked: “If I were
in President Obama’s position, what would I do?”
Here’s my answer to that question.
I would see myself as having been chosen, by the American people,
to do the job of president—a job that our founders regarded as of great
importance. In the modern world, the president has a responsibility to move the
nation forward. The president is especially called upon to make progress in
those areas that he talked about when he ran for the office.
For the nation to be totally stalled by partisanship is contrary
to how the American system is supposed to function.
So if I came to understand that it had become impossible for me
to perform my role as president by working with Congress to pass legislation, I
would turn to my legal counsel and my policy advisors and give them this
assignment:
“Come up with
everything – consistent with the law and the Constitution – that I can do on my
own to move the country forward in the ways I pledged myself to do when I was
elected to this office.
“The American
people are ill-served if we acquiesce in governmental paralysis, especially
when we have so many major challenges.
“I don’t want
to do anything that exceeds my rightful authority. But, in view of the
destructive effects on the nation of our inability to achieve any kind of
progress through Congress (witness our having had lately the least productive
congressional sessions in our history), I don’t want you to err on the side of
caution. Wherever a truly good case can be made for presidential authority,
give that authority the benefit of the doubt.’’
If that is what the President has done, it is inappropriate – even hypocritical – for
Republicans to attack him as a tyrant for turning to the only tool available to
him -- executive orders -- to perform his job.
