During what normally is a slow news cycle, the New York Times published a front-page story on Christmas Eve, the importance of which may be overlooked. The story itself, “Facing New Politics, Obama Is Set to Shuffle Staff,” focuses on anticipation and speculation over upcoming organizational changes in the Obama administration. Although this is certainly important news in and of itself, what’s more important is the implied motive for the shuffling: skirting Constitutional limitations.
Let’s begin our exegesis with the story’s title: “Facing New Politics.” The midterm elections created adverse conditions for Obama’s policy goals. With a Republican majority in the House of Representatives and a slim Democrat majority in the Senate, President Obama is preparing “for the realities of divided government.” For the second half of his first term, Congress won’t be a rubber stamp. Even if Democrats can bully legislation through the Senate, passage in the House will be made quite impossible. It’s a reality that previous presidents have dealt with too. Learning from his predecessors, Obama apparently intends to do what was most recently done by George W. Bush: simply ignore Congress and find a way to do what you want anyway.
According to the article, “the president is studying how to maximize the power of the executive branch … seeking insight from veterans of previous administrations.” In light of the fact that he’s “facing new politics,” the only reasonable explanation for “maximizing the power of the executive” would be to avoid the checks and balances of a Congress that may not be willing to write his policies into law. And if by studying he really means seeking legal justifications for making law by fiat, some of the veterans he could talk to include the lawyers from President Bush’s White House legal team, guys like Alberto Gonzales and John Yoo, who wrote creative legal briefs that justified things like warrantless wiretapping, torture, secret renditions, and ignoring the Bill of Rights altogether by using a broad interpretation of executive powers in the Constitution.
In fact, he could simply study the executive actions of virtually every president since Abraham Lincoln. In their book, Who Killed the Constitution?, Mises Institute fellow Thomas Woods and historian Kevin Gutzman provide a detailed history of such practices – Obama might just want to study it too since, in a twisted way, it provides evidence of precedents for usurping powers not granted in the Constitution.
It’s no surprise that the president wants to maximize his power because that’s the very nature of the federal government. It’s not a partisan issue. It’s a Constitutional issue.
And, it’s an issue that the Tenth Amendment Movement can counter. States are just as capable of nullifying an executive order as they are a congressional bill.
cross-posted from the Massachusetts Tenth Amendment Center