And any engaged citizen or journalist also knows that important social legislation often takes a decade of legislative hearings and mark-up in various committees of each house, with each new Congress taking up the bill or portions of it from previous sessions. One classic and very readable text is The Dance of Legislation, in which Eric Redman tells a first-hand, sometimes exciting story of the struggle for passage of "The National Health Service Bill," which is modest compared to Obamacare and comprehensive immigration reform.
Our personal liberty takes a serious hit with President Obama's revised legislative process:
"A pen and a phone. Just a pen and a phone. And when we are used, congressmen moan."
The president claims he is merely exercising discretion under existing laws. Sometimes, he asserts discretion not to enforce certain provisions that were part of the legislative compromise necessary for the law's passage (a title-by-title veto exercised years after passage). At other times, he claims authority to re-write dozens of provisions in the Obamacare law, because Congress won't fix them. And still other times he cobbles together entirely new amnesty programs for illegal aliens, including renewable two-year work permits.
One problem with the discretion defense is that it contradicts earlier statements President Obama and other administration officials made about the scope of executive authority under the relevant laws. In September 2011, Obama
Another problem with the discretion defense is that most actions don't even pass the legal laugh test. The devil is in the details of each abuse of power, since the administration does have some enforcement discretion, but the Supreme Court reversed his recess appointments 9-0. The Supreme Court has reversed the administration's position in 9-0 votes thirteen times, which is remarkable, especially after only 5.5 years in office. It is also instructive to note that most of those unanimous votes included his two appointees to the High Court, Justices Elena Kagen and Sonya Sotomayor, the first of whom was his Solicitor General.
One of the administration's 9-0 losses was the Pacific Legal Foundation's victory for our clients in Sackett v. EPA (2012), but that was after the homeowners fought the EPA's unreasonable position for over four years. EPA still has not settled the case after the remand. Unfortunately, the President's impatience is intensifying with his short-fused ultimatum that he will take unilateral action on immigration and citizenship issues, possibly legalizing up to five million illegal entrants, if Congress does not pass comprehensive immigration reform by the end of the summer.
That ultimatum is the latest proof that the President is not exercising normal enforcement discretion, but is usurping legislative power. That is a serious threat to liberty that honest Americans across the political spectrum are concerned about; we should deny that power to every president of any party.
Such abuse is also corrosive of the legitimate legislative process, as shown by the administrative programs that mimic parts of the Dream Act. Even if the administrative programs are later struck down as unconstitutional, they immediately undermine the incentives for compromise necessary in the legislative dance—as the President even
We need a legislative process that produces stable and democratically accountable results, and we should remember that an unchecked power used for expedient purposes today can be used for tyrannical ends tomorrow. Accordingly, citizens should strongly oppose executive usurpations just as much when they agree with the administration's policy goal. As Justice Louis Brandeis noted in 1928:
"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding."
Cynics suspect the President knows all this, but a political imperative or hyper-ego trumps self-restraint. Yet, like the realization that foreign bullies such as Putin must be checked to discourage new abuses, Americans should speak out forcefully against more direct, domestic threats to our liberties. We must restore the separation of powers while we have checks enough to make a difference, even if that requires patience and compromise