Obama and Congress: At the Crossroads of Constitutional Balance
"If Congress refuses to act… I'll continue to do everything in my power to act without them," the President of the United States said recently.
The "power" to which the President referred was that of issuing executive orders, given in Article II, Sections 1 and 3 of the Constitution.
Under the stretching and warping of 44 presidencies, the executive order privilege has gained a troubling elasticity. No one described it better than Clinton aide Paul Begala in 1998, when he said: "Stroke of the pen. Law of the Land. Kinda cool."
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What is uncool is realizing that a President can singularly make "law of the land" without the consent of Congress. Nixon, my former boss, changed the basic structure of the American economy on August 15, 1971, through Executive Order 11615, through which he imposed 90-day wage and price controls on the nation, and took the country off the gold standard.
The White House staff worked feverishly that Sunday afternoon and evening soothing upset conservatives who supported the President because they thought he stood for a less-expansive government.
Big joke. "Stroke of the pen. Law of the Land. Kinda cool."
Far from "cool," as I look back now from the perspective of 41 years, it was a "day of infamy" with respect to domestic policy. A President and 15 advisors could suddenly alter America's fiscal policy to such an extent it became known as the "Nixon Shock."
Thomas Jefferson wouldn't think it "cool" either. "I could not but be uneasy when I saw the Executive had swallowed up the Legislative Branch," he told President Washington in 1792. We should all be "uneasy," given the trends of our time to stretch and bend the Constitution into cultural whim.
When conservatives were distressed over Nixon traveling to Communist China in 1972, we in the White House reminded them he was the very man who could be trusted with this mission because of his stance against communism.
One therefore could argue that if anti-Communist Nixon could be trusted to deal with Communist China, then a leftist President could be best trusted with a wider use of executive orders. After all, the argument might go, the left trumpets its advocacy of human rights, and certainly a liberal President would do nothing to restrict the freedoms and delicate equilibrium of constitutional governance.
We hear many warnings from the cultural establishment about the dangers of a "right-wing" takeover, but all too little about the possibilities of left-wing tyranny. This is deadly naiveté. We should watch both sides with the eyes of a hawk. A healthy electorate must not only support good candidates, but suspect them as well. Hubris-infected reformers and transformers have little time for constitutional niceties.
Congress can do little about the executive power privilege without upsetting constitutional order. The people must have the good sense to protect themselves by electing candidates who respect constitutional authority, and are not driven by a desire to rip it from its anchoring principles.
When Israel demanded that Samuel appoint a human king, the old patriarch warned the people that a human ruler would exploit and oppress them. "Nevertheless, the people refused to listen to the voice of Samuel," says 1 Samuel 8:19.
America is at a crossroads with respect to constitutional governance every bit as crucial as that moment when the "voice of the people" of ancient Israel demanded a king. May God give us leaders who understand and resist the temptation to rule rather than lead, and may we have the good sense to elect them.
