OEDEL: A royal pain

January 19, 2014 

Last Monday during oral argument at the U.S. Supreme Court, almost all the justices seemed skeptical that President Barack Obama should be able to appoint senior officials without constitutionally mandatory Senate approval simply because the president claims the Senate to be in “recess.”

That would transform an archaic presidential power, originally meant for use when the Senate was off-season, temporarily to “fill up all vacancies that may happen during the recess of the Senate.” But there’s no Senate off-season anymore.

It seems wrong for President Obama to use the recess appointment power to evade senatorial approval whenever the senators might shut off the lights.

Temporary appointments to a few senior federal positions may not seem like a big deal, but this kerfuffle reveals a deeper constitutional concern about runaway presidential power. To save the Affordable Care Act from itself, for instance, President Obama and his administration have unilaterally modified it many times, most recently by concocting a “hardship” exemption for those whose insurance is canceled under Obamacare.

Previous unilateral fixes to Obamacare included suspending the employer mandate; giving exclusive health care subsidies to congressmen and staff despite Obamacare’s provision requiring them to participate in Obamacare like others; and, perhaps most important, getting the IRS to override the act’s language that only exchanges operated by states should get subsidies. That last attempted patch could sink a big part of Obamacare when the courts finally test it.

President Obama has not been shy about ignoring statutory admonitions in other settings as well. For instance, unable to get his Dream Act through Congress, the president in 2012 ordered the Department of Homeland Security just not to deport illegal aliens brought here as children. Also in 2012, Obama’s Department of Health and Human Services unilaterally opened the door to gutting one of President Clinton’s signature legislative achievements, Temporary Assistance for Needy Families, by waiving welfare-to-work requirements. So much for Clinton’s claim to have ended welfare as we knew it.

Although Obama exemplifies constitutionally dubious presidential overreach, he’s not unique. President George W. Bush, for example, was fond of using presidential “signing statements” to signal how he’d “interpret” some aspects of laws that he was signing, in effect unilaterally modifying them. Such statements are of dubious constitutionality.

President Clinton was equally adept at using the extra-constitutional “executive order” technique to usurp legislative power and avoid parrying with that pesky Congress.

What a royal pain it is for a president to have to deal with other branches led by those with different views. It’s enough to make a president sympathize with good old King George for having had to deal with those unruly American colonists.

I kid you not at the historic depths of this constitutional tension. We’ve seen striking examples of presidential overreach throughout American history. For instance, in Franklin Delano Roosevelt’s court-packing plan; Woodrow Wilson’s conduct of World War I; Abraham Lincoln’s unilateral suspension of habeas corpus and emancipation of slaves; Andrew Jackson undermining the Second Bank of the United States (for which he was censured by the Senate in 1834); and Thomas Jefferson’s patently unconstitutional purchase of the Louisiana Territory.

Obviously, sometimes it may be wise to stretch presidential authority in special circumstances. Still, one tends to wonder about Obama’s judgment in pushing constitutional limits merely to enshrine some partisans on the National Labor Relations Board, or to try saving a fatally flawed health care act from itself.

Last Tuesday, seemingly oblivious to the court’s uniform skepticism about presidential overreach expressed just the day before, Obama convened his cabinet and restated his disdain for working within the constitutional system, this time to address economic concerns of the middle class.

“We’re not just going to wait for legislation,” Obama said. “I’ve got a pen, and I’ve got a phone. I can use that pen to sign executive orders and take executive action and administrative actions that move the ball forward.”

Obama’s constitutionally cavalier approach to pressing presidential power, though not wholly unprecedented, ultimately will undermine his authority, efficacy and legacy. At least by historical measures, present circumstances don’t warrant Obama’s constitutional imperiousness.

David Oedel teaches constitutional law at Mercer University law school.

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