OPINION:
There’s been a lot of gleeful chatter about the end of Barack Obama’s presidency, from people who should know better.
Looking at poll numbers, NBC’s chief White House correspondent and political director Chuck Todd said that voters are telling Barack Obama “your presidency is over.” Similarly, The Wall Street Journal has seized upon the half-baked idea that Congress might sue the president for failing to enforce the law. Then Rep. Lou Barletta, Pennsylvania Republican, missed an excellent opportunity to keep silent when he speculated that the president might be impeached. Finally, attention has begun to turn to the 2016 election and the choice of a new president, which underlines how the 22nd Amendment, limiting the chief executive to two terms, tends to turn presidents into lame ducks.
Don’t believe it. We’re a representative democracy, and a shift in poll numbers doesn’t take a thing away from the president’s constitutional powers. As I explain in “The Once and Future King: The Rise of Crown Government in America,” there aren’t very many limits to those powers today. Sure, the president has to face an election every four years, but that’s almost the only thing left of the Constitution the Framers gave us in their 1787 Convention.
The president’s ability to make law by executive order will continue until Jan. 20, 2017, and you can bet he’ll avail himself of this. Back in February, he raised the minimum wage for employees of federal contractors to $10.10 an hour, and in the cards is a new executive order barring federal contractors from discriminating on the basis of sexual orientation. Ostensibly, independent regulatory bodies will also take their lead from the president, as the Environmental Protection Agency recently did when it ordered coal-fired plants to cut carbon-dioxide emissions by up to 20 percent. As for presidential war powers and Iraq, the president has told Congress that the decision whether to intervene or not is his and his alone.
The president’s ability to ignore laws he doesn’t like by refusing to enforce them represents a remarkable extension of executive power. When Congress refused to pass the Dream Act to regularize young illegal aliens, for example, Mr. Obama did it his way through an executive order and a refusal to enforce the immigration laws. Recently, The Wall Street Journal has suggested that the House of Representatives take action to impeach the president’s nonenforcement power through a lawsuit, but that’s not going to happen. The precedent value of one such court case wouldn’t much constrain the president the next time he decides to ignore a law, because plausible reasons such as expediency or efficiency can always be trotted out to justify nonenforcement.
Because any president legitimately needs some discretion about how to enforce a law, it’s likely the Supreme Court would punt before rushing into a political turf war. (Remember the Obamacare decision?) Finally, knowing all that, one wouldn’t expect the House to litigate the matter in the first instance. Apart from everything else, the lawsuit would likely be a political loser for Republicans, since the narrow issues they’d take on are generally ones in which Mr. Obama has the voters on his side. There’s no political constituency for the separation of powers.
Mr. Obama’s supporters gleefully seized on Mr. Barletta’s suggestion that Mr. Obama be impeached as evidence of Republican obtuseness. Impeachment doesn’t mean anything unless a president is removed from office by a two-thirds vote in the Senate, and before that happens, you’d want a president from one party and the House and 67 senators in the hands of the other party. That has happened once in American history, in 1868, and even then the Republicans couldn’t remove Andrew Johnson. It’s not going to happen now, whatever happens in the November congressional elections.
If anything, the Obama administration has displayed more hubris in recent days than ever before. When the Internal Revenue Service scandal broke, Mr. Obama’s initial reaction was to condemn the politicization of a feared branch of government. In February, however, he told Fox News’ Bill O’Reilly that there’s “not even a smidgen of corruption” in the IRS. Then in the last few days we’ve learned of lost emails, erased hard drives, and a cover-up of evidence at the IRS that makes the Nixon White House a model of transparency. That doesn’t sound like a failed presidency. Instead, it’s the picture of a president flexing his arms and exulting in the plenitude of his powers.
There will be a new president in 2017, but will that make a difference? We’ll have to see.
F.H. Buckley is a law professor at George Mason University and the author of “The Once and Future King: The Rise of Crown Government in America” (Encounter, 2014).
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