Congress’ drudgery keeps us democratic
Relying on the advice of his lawyers, George W. Bush in 2002 and 2003 issued orders authorizing torture and extrajudicial proceedings for people suspected of plotting terrorist attacks against the United States.
In 2014, Barack Obama issued an executive order that would have allowed up to 5 million illegal immigrants to remain in the United States and obtain work permits if they were the parents of U.S. citizens or of children with legal residency status.
Bush believed he was protecting Americans from terrorism. Obama said that Congress had become so dysfunctional that it could not act in the country’s best interest, so he would act on his own to solve our immigration mess. Eventually, the courts ruled against both presidents.
Millions of Americans applauded Bush’s action.
Millions of Americans applauded Obama’s. Instead of applauding, they should be worried. We fancy that our nation is run by three branches of government, each acting as a brake on the excesses of the other. In reality, American presidents have secured extraordinary powers, so many powers there are times the rule of law is usurped by the actions of a single man.
The New York Times last week published a history of Obama’s use of executive orders. The Times reported that Obama, who entered office highly skeptical of executive power, had by the end of his seventh year finalized 560 major regulations, 50 percent more than George W. Bush had finalized in a similar period. And Bush was no slouch when it came to issuing executive orders.
Bush’s lawyers were convinced that his “global war on terror” gave the president much more power than the courts would ultimately support. Obama decided that, since Congress would not act “to expand opportunity for more American families,” he would act without legislation.
A big part of this problem is that Congress enacts laws that often provide only general guidance and empower the president to implement congressional will through regulation. This leaves the executive with enormous latitude in a number of areas.
University of Chicago Law School professor Eric Posner reviewed Donald Trump’s plans to deport illegal immigrants, restrict trade with China and other of his positions, and found that a president could implement many of Trump’s plans right now and without any congressional approval.
Existing law allows a president to bar Muslims or anyone else from entering the country if he finds admitting them would be detrimental to the national interest. A president could impose tariffs on China or any other country by claiming he is retaliating against unfair trade practices. It is up to the president to decide what “unfair” means.
Trump could dump the Paris climate change agreement, withdraw from the World Trade Organization and end our membership in NATO, all with executive powers already in place, Posner said.
A president who doesn’t like a law can simply choose not to enforce it. That’s what Obama has done with immigration laws.
Latitude in military matters is even more wideranging. John Yoo, among other Bush lawyers, insisted that, in war time, a president could do pretty much anything he wanted to do, and Bush acted accordingly.
Bruce Ackerman is a Yale Law School professor who helped Bill Clinton during his impeachment trial and represented Al Gore during the Florida vote recount. He admires Obama, yet he argues the president abused his powers by taking the United States to war against the Islamic State.
Congress authorized Bush early in his term to use the military against al-Qaida and organizations allied with it. Obama used that authority to justify military action against the Islamic State when not only is IS not allied with al-Qaida, it is actively hostile toward it. Neither Congress nor the courts have raised any serious objection to Obama’s use of troops.
Ackerman invites us to consider what happens when relatively centrist politicians like Bush and Obama are succeeded by “extremists.”
Armed with a mandate from the voters, “Their steady stream of presidential directives will override expert assessments of the facts, or traditional understandings of the law, provided by the agencies” that they control. By the time the courts or Congress check the extremist president, the damage will be done.
Certainly, many Americans are grateful a president accomplished something without the drudgery of securing a vote in Congress. Unfortunately, it is that drudgery that secures for the nation a government of laws, not men.
Democracy is a marathon, not a sprint. A little patience and some faith in the process will go a long way toward keeping our nation safe from dictatorship.