Some Democrats, like Kevin Drum of Mother Jones, are so in the tank for President Obama that they will excuse any use of executive power no matter how badly it shreds the Constitution.
For example, last week after Obama again delayed Obamacare regulations on health insurance plans, Drum wrote, "As regular readers know, I don't have much patience with right-wing paranoia about how President Obama is ripping apart our democracy by relentlessly issuing executive orders and reinterpreting agency rules."
But other liberals, who have actually studied law, are beginning to develop their own "paranoia" about where Obama's "I will act on my own" strategy is headed.
George Washington University Law School professor and frequent Rachel Maddow Show guest Jonathan Turley, for example, wrote in this Sunday's Los Angeles Times:
The United States is at a constitutional tipping point: The rise of an uber presidency unchecked by the other two branches. This massive shift of authority threatens the stability and functionality of our tripartite system of checks and balances.
I happen to agree with many of the president's policies. However, in our system, it is often more important how we do something than what we do. Priorities and policies and presidents change. Democrats will rue the day of their acquiescence to this shift of power when a future president negates an environmental law, or an anti-discrimination law, or tax laws.
To be clear, President Obama is not a dictator, but there is a danger in his aggregation of executive power.
Turley goes on to list a number of policy areas that Obama has exceeded his constitutional role, including immigration, education, energy, and drug policy. You can read a very similar list here.
And Turley is not alone.
University of Michigan Law School professor Nicholas Bagley, who writes at the liberal Incidental Economist blog, admitted last week:
The lack of a persuasive legal justification matters most not for the current political battles, but for the future. Because the Constitution doesn’t crisply detail what the “take Care” clause means, the phrase accrues meaning through practice. The Obama administration’s repeated delays of the ACA now stand as precedent for future administrations that would also like to postpone statutes. The more the administration delays the ACA, the firmer that precedent becomes.
There’s a risk, then, that the delays will transfer to the executive branch considerable power to refashion statutes. That could spell trouble for health-care reform down the line. What if a future president were to postpone portions of the law that were essential to the law’s ongoing success? Or provisions that protected consumers from sharp insurance practices? The recent delays might give him legal cover to do so.
The worry isn’t confined to health care. The ACA delays stand as potential support for postponing the effective date of any law, whether it’s a tax-reform statute, a new immigration law, or climate-change legislation. But that freewheeling authority to delay substantive law would mark a dramatic shift in the allocation of lawmaking power in our constitutional structure.
Even the author of Living Originalism, Yale Law School professor Jack Balkin, has voiced concerns, warning in the Boston University Law Review, that "[n]ew exertions of executive power crafted to deal with a dysfunctional Congress may serve as justifications for future Presidents to act unilaterally later on."
Democrats better hope they win the White House forever. Because the next Republican president, whomever he or she is, is taking notes on Obama's executive power grabs now. And Democrats will not like how that president will uses them.
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