The delays in the implementation of the ACA, the scandal at the Department of Veterans Affairs, the new carbon control regulations from the EPA, and the failure to enforce our nation’s immigration laws all have one thing in common: they showcase the consequences of blurring the lines between our branches of government.
According to our Constitution, Congress is empowered to make law and the President enforces the law as it is written. Even a cursory look at Washington today is enough to see that this is no longer the practice. Our current system of government allows the President to abdicate responsibility when it suits him (i.e. the VA Scandal) and to rewrite legislation through selective enforcement (i.e. immigration law, environmental regulations, and even the Affordable Care Act).
The modern executive is nothing like what the Framers envisioned. Alexander Hamilton calls for the Executive Branch to be “energetic” in Federalist No. 70, No. 71, and No. 72. He evens says, “Energy in the executive is a leading character in the definition of good government.” Hamilton understood energy as broad discretion within a narrow range of powers (see Article II). What President Obama is displaying is not the energy Hamilton intended—it is force and compulsion made possible by the consolidation of legislative and executive power in one office.
The Framers believed that the President alone is responsible for the management of the Executive Branch and its actions—Hamilton calls this “the unity in the Executive.” Hamilton also warns that there are two ways of destroying unity in the Executive: 1) having more than one executive or 2) “vesting [executive power] ostensibly in one man, subject in whole or in part to the control and cooperation of others, in capacity of counselors to him.”
The United States opted for Choice #2 when the Supreme Court made its rulings in the Hampton Jr. v. United States (1927) and the Humphrey’s Executor v. United States (1934) cases. Hampton Jr. determined that Congress could delegate its legislative authority to an independent agency; Humphrey’s Executor determined that the President cannot remove an officer of an independent agency except in cases of “inefficiency, neglect of duty, or malfeasance in office.”
The EPA draft rule that came out last week is a perfect example of the problems these decisions created. Hampton Jr. allows Congress to delegate its rule-making authority to the EPA. Humphrey’s Executor says the President is not responsible for the EPA because it is an “independent regulatory agency.” The Humphrey’s Executor decision took away the President’s removal power. This protects the agency from the President and empowers it to act unilaterally. This is especially important for the agency when the President and the agency have ideological differences. The agency is able to produce and enforce regulation in spite of Presidential opposition.
Fortunately for President Obama, he and the EPA share ideological goals—President Obama can bypass Congress and enact legislation he wants passed through these agencies.
If these agencies either fail or overstep, however, the President is able to plead ignorance and avoid responsibility. The VA Scandal is a perfect example. When the story broke, President Obama denied any knowledge of the systemic problems at the VA and nobody asked the question: “Why didn’t the President know?” All President Obama had to do under our current system of government was accept Secretary Shinseki’s resignation and call upon Congress to pass more legislation to fix the problem.
The Constitution also requires the President “to faithfully execute” the laws of the United States. By selectively enforcing the mandates of the Affordable Care Act through delays and exemptions, President Obama rewrites his own landmark legislation whenever it becomes politically expedient. This kind of selective enforcement is tantamount to a line item veto, which the Supreme Court found unconstitutional in 1998.
This also applies to the issue of immigration. President Obama wants to see landmark immigration reform passed in Congress. Until that happens, however, he is content to enact de facto immigration reform by simply not enforcing immigration law. Because President Obama views this as what is best for the country (and also his party), the ends justify the means.
Regardless of political persuasion, everyone should be troubled by this paradigm shift in the role of the President of the United States. The President is no longer the chief executive envisioned by the Framers. Instead, the President is able to treat Congress as a board of advisors and enact his agenda as he sees fit—whether through selective enforcement, non-enforcement, or using the bureaucracy. The danger in this situation, as Madison says in Federalist No. 47, is that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands…may justly be pronounced the very definition of tyranny.”