Rise of the Superpresident
by ANDREW MIILLER
Historians may look back on Jan. 14, 2014, as a tipping point in American history. On that day, President Barack Obama urged his cabinet to help him identify ways to advance economic recovery by circumventing the legislature.
“We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need,” the president told reporters before his cabinet meeting. “I’ve got a pen, and I’ve got a phone. And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward in helping to make sure our kids are getting the best education possible, making sure that our businesses are getting the kind of support and help they need to grow and advance, to make sure that people are getting the skills that they need to get those jobs that our businesses are creating.”
No president since World War II has OPENLY justified executive overreach by saying that it was necessary to circumvent legislatures because they refused to do what he wanted!
In saying this, President Obama was articulating the philosophy that has increasingly defined his presidency: I can’t wait for Congress to do its job, so where it won’t act, I will.
Two weeks later, during his State of the Union address, President Obama notified both houses of Congress of his decision to go it alone in areas where they refused to act to his satisfaction. One would think an announcement in such blatant violation of America’s tripartite system of checks and balances would elicit an outcry, or at least stunned silence. Instead, the floor of the House of Representatives erupted in thunderous applause. It really looked like America’s lawmakers were delighted at the notion of a president usurping unprecedented and unchecked powers at their expense.
Georgetown law professor Jonathan Turley, a political liberal, was one of the few legal minds at the time warning of the danger behind this executive power grab. “The system of separation of powers was not created to protect the authority of each branch for its own sake,” he wrote in a Los Angles Times editorial. “Rather, it is the primary protection of individual rights because it prevents the concentration of power in any one branch. In this sense, Obama is not simply posing a danger to the constitutional system; he has become the very danger that separation of powers was designed to avoid” (March 9, 2014).
In the same editorial, Turley warned: “The United States is at a constitutional tipping point: the rise of an über-presidency unchecked by the other two branches.” America has moved into a dangerous era where the only constraints on presidential power are no longer constitutional—merely political.
Expanding Executive Privilege
As president, Mr. Obama has modified and ignored various provisions of the Affordable Care Act with barely a pretense of legality. He has launched a military campaign in Libya without congressional approval. He has appointed “czars” as a means to evade the constitutional requirement that the Senate confirm high-level government officials. He has asserted the right to kill American citizens without due process if a “high-level official” says they pose an imminent threat to the nation.
When confronted in 2014 about his record of executive overreach, the president taunted his critics: “Middle-class families can’t wait for Republicans in Congress to do stuff. So sue me.”
To make it harder for the courts to rein in executive decisions, President Obama has been substituting “executive actions” for executive orders. Unlike executive orders, which are issued as an official cataloged transcript, executive
actions are informal orders from the president to his underlings in the executive branch. Judge and judicial analyst Andrew Napolitano recently warned that issuing executive actions instead of executive orders could make it “more difficult and cumbersome” to legally challenge the president’s decisions.
In November of 2014, President Obama issued executive action on immigration policy. He instructed the executive branch of government to offer temporary legal status to millions of illegal immigrants. This order unilaterally enacted immigration reform that congressional lawmakers wouldn’t enact themselves.
When hecklers interrupted one of his speeches by demanding an immediate end to all deportations, the president responded by saying, “What you’re not paying attention to is the fact that I just took an action to change the law.”
Apologists for the Obama administration will claim this executive action was no different from previous executive actions enacted by former U.S. Presidents Ronald Reagan and George H. W. Bush. What they fail to notice is that both Reagan and Bush were instructing the executive branch to enforce somewhat ambiguous aspects of immigration law that had already been passed by Congress. President Obama’s action was truly historic in that Congress had already declined to pass an immigration reform bill. As he himself admitted, his executive order truly did take “an action to change the law.”
Under the U.S. Constitution, Congress writes laws, the court interprets laws, and the president enforces those laws. Executive action is not illegal as long as it falls within the parameters of enforcing laws already passed by the legislature. Creating new law via executive fiat, however, is the very definition of an imperial presidency!
In this case, a three-judge panel of the Fifth Circuit Court of Appeals was able to strike down President Obama’s executive action on immigration reform as unconstitutional since it created new law. The case is currently awaiting an appeal to the U.S. Supreme Court. The court ruling on the legality of President Obama’s power grab will be another defining moment for the American republic.
If the separation of powers has eroded to a point where a president can unilaterally enact legislation, then America is nothing more than an authoritarian monarchy where 51 percent of the people elect their king every four years!
Sprawling Bureaucratic State
The president’s power to direct the executive branch to take legislative action is even more worrying when you realize how big, and dangerously off kilter, the executive branch has become over the last century. When certain U.S. presidents in the pre-World War II progressive era tried to circumvent Congress, they had nowhere near the executive power at their disposal that President Obama has today.
Today, there are about 30,000 federal employees in the legislature branch, 32,000 staff members in the judicial branch and an astounding 2,618,000 non-military workers in the executive branch.
While the country’s population has increased about 80-fold in the past two centuries, the size of the executive branch has exploded to almost 3,000 times its original size. In 1790, there were about 1,000 non-military workers in the executive branch. Today, there are well over 2 million non-military civil servants in the executive branch—spread across 15 departments, 69 agencies and 383 non-military subcommittees!
“The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself,” wrote Turley in a Washington Post editorial. “It is not just bigger, it is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency”