In the L.A. Times, Jacob Hacker (Yale – Political Science) and Oona Hathaway (Yale Law School): Beware an Unchecked President — The solution to a dysfunctional Congress is not for Obama to govern the country all by himself.  From the introduction:

In the face of congressional gridlock, President Obama has started taking more and more matters into his own hands. In recent months, he has announced new gun control measures, put in place limited immigration reform and made fixes to the Affordable Care Act — all without Congress. Many liberals who once worried about presidential overreach have applauded his robust use of presidential power.

Yet the president’s increasing unilateralism shouldn’t be cause for celebration. Bypassing Congress means bypassing democratic checks. It also means giving up on government’s ability to effectively address serious long-term challenges. The solution to a dysfunctional Congress isn’t an unchecked executive; it’s a Congress that actually works.

And this reminder:

But while Democrats have the presidency now, they won’t hold it forever. In the meantime, they’re feeding a beast that will be extremely difficult to control in the future. And the policy achievements could prove ephemeral. Anything Obama can achieve alone, a successor can potentially undo.

Agreed, and while I think the President may be on stronger ground in some of these areas than many commentators do, anything that looks like presidential lawmaking should be viewed with constitutional suspicion.    Given the precedents being established, why couldn’t a Republican president declare, for example, that he wasn’t going to enforce the capital gains tax or the estate tax for a year?

RELATED:  At Opinio Juris, Julian Ku:  Does the U.S. Congress Have to Approve the New WTO Agreement? Apparently Not (noting that U.S. trade officials appear to be taking the position that the new round of WTO amendments need not be approved by the Senate or Congress because the amendments don’t change U.S. domestic law).  Professor Ku comments:

This makes sense if one thinks of congressional approval of executive agreements as simply implementation of international obligations into domestic U.S. law.  But the congressional role in trade agreements has also been understood to fill in for the role of the U.S. Senate in approving treaties even if those treaties have no domestic law impact.  For U.S. law purposes, the President can’t enter into a treaty unless the Senate gives its advice and consent.  In the trade agreement context, I think many scholars have thought that Congress’ approval of those agreements by a majority of both houses serves the same role of giving the input of the legislature on the President’s decisions to enter into international agreements.

The administration approach here follows a pattern of avoiding Congress in international deal making, including the recent non-agreement/agreement with Iran and the Anti-Counterfeiting Trade Agreement (ACTA).

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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