Power Suit

Power Suit

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What makes the American model of government superior to most others is its elaborate web of checks and balances. Like a mobius strip, the chart of American government depicts three branches each extending an arrow of oversight towards the other two, creating a tightly interlocking network of watchmen being watched. No matter what one branch does, the others always have venues of recourse.

On paper, at least. In practice, alas, not all checks are equally balanced.

While no one disputes the blunt effectiveness of a president vetoing a bill of Congress, the Senate refusing to confirm a judge, or a judge rejecting an unconstitutional decision of the White House or legislature, Congress’ ability to reign in the executive has always proved the most daunting challenge.

A presidential veto can be overridden by Congress, but that requires the two-thirds approval of both chambers, something only possible in the case of legislation boasting enormous, bipartisan popularity, such as the 2008 Medicare funding bill unsuccessfully vetoed by George W. Bush, or President Clinton’s attempt a decade earlier to cancel popular military spending initiatives in a variety of districts held by politicians of both parties. In all, there have been less than 10 overrides in the past 20 years.

Then there’s impeachment, which though actually easier than overriding a veto — requiring, as it does, merely a two-thirds majority in the Senate and a simple majority in the House — has become perhaps the single most stigmatized provision of the US constitution. America’s long tradition of presidential stability has made even contemplating the removal of a president mid-term a taboo of enormous proportions, a fact only further complicated by the legacy of the Clinton years, which established something of a legal-cultural consensus that presidents only deserve to be unseated for serious criminal misdeeds, as opposed to merely moral or political ones.

To be sure, Congress can handicap a president. They can defund his pet projects, as Republicans are always threatening to do with Obamacare, or simply ignore his requests for action, as has been the case with… well, you name it. But as modern presidents have embraced an increasingly maximist understanding of their constitutional powers, the rising challenge for Congress has been the question of how to restrain  a president whose most objectionable decisions are made unilaterally.

Barack Obama has often interpreted his mandate in unusual ways. A common refrain, echoed most recently during his rose garden vow to “fix as much of our immigration system as I can on my own without Congress” is that the need to make policy supersedes the need to respect constitutional procedures for making it.

In the case of immigration, the President is tilling familiar ground. In 2012 he unilaterally declared a two-year amnesty (since extended to four) for the approximately 800,000 illegal immigrants who arrived in America as children. It was a move explicitly intended to compensate for Congress’ failure to pass the so-called Dream Act a year earlier, which promised similar legal relief for America’s inadvertent aliens. Where legislation failed, rule-by-fiat would succeed.

Selective enforcement of the law has likewise been the preferred Obama approach to drug policy. In 2009, Attorney General Holder declared the United States would not enforce federal drug legislation in states that had legalized marijuana for medicinal purposes, and in 2013 he expanded that blind spot to include states that legalized it for recreational use, too. The Justice Department has announced similar plans to stop prosecuting drug offenders when they deem the mandatory punishments excessively harsh. The underlying logic, apparently, is that laws should only be upheld to the extent they serve the President’s ideological ends.

Then there’s Obamacare, whose finer points were all implemented through executive action, most notably the imposition of the everyone-has-to-have-insurance-now deadline (Congress’ law said six months ago; the President says 2016), but also this whole business of forcing employers to cover morning-after birth control that the Supreme Court recently designated an unjust burden on corporate religious freedom.

In response to the administration’s handling of the Obamacare rollout in particular, Speaker John Boehner has announced he plans to sue the White House for unconstitutional behavior, namely a dereliction of the duties mandated by Article II, Section 3: “[The President] shall take Care that the Laws be faithfully executed…” Though what specific redresses the suit will seek have yet to be disclosed, an ideal ruling would presumably compel the administration to begin imposing the Obamacare insurance mandate right away — you know, like the law was supposed to.

Is this wise? The legal establishment seems skeptical. Asking the judicial branch to resolve a conflict between the executive and legislative has little precedent in American history, elevating, as it does, the courts to the status of supreme referee of intergovernmental jurisdictional disputes — itself a proposition of dubious constitutionalism. On the other hand, the more constitutionally orthodox prescription for a Congressional problems with a president — impeachment — seems not only absurdly radical, but politically suicidal. But still, you gotta do something.

President Obama’s Republican predecessor, of course, faced constant abuse of power criticisms of his own, though it’s worth noting that much of the Bush-bashing involved disputes over what is and isn’t within the president’s prerogative as “commander-in-chief,” one of the constitution’s most disputed phrases. In the end, Congressional Democrats elected to do little more than obstruct, complain, and run out the clock — a technique Republicans may ultimately have no choice but to emulate.

Term limits have always been controversial, but they remain the only long-term defense against an executive restrained by little else.

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