separation of powers
The frequency with which the Obama administration has gone rogue and completely ignored Congress’ will seems to increasing at an exponential rate. I fear that by the end of the campaign Obama will be issuing executive fiats on a daily basis. The latest: gutting welfare reform.
The landmark welfare reform law President Bill Clinton signed in 1996 helped move nearly 3 million families off the government dole — the result of federal work requirements that promoted greater self-reliance.
Yesterday the Obama administration gutted those federal work rules, ignoring the will of Congress by issuing a policy directive that allows the Department of Health and Human Services to waive the work requirements for the Temporary Assistance for Needy Families (TANF) program. “The result is the end of welfare reform,” wrote Robert Rector and Kiki Bradley of The Heritage Foundation.
Surely there was a provision in the legislation that permitted the president to grant such waivers, right? Yes. And no.
Today the Obama administration issued a dramatic new directive stating that the traditional TANF work requirements will be waived or overridden by a legal device called a section 1115 waiver authority under the Social Security law (42 U.S.C. 1315).
Section 1115 allows HHS to “waive compliance” with specified parts of various laws. But this is not an open-ended authority: All provisions of law that can be overridden under section 1115 must be listed in section 1115 itself.
The work provisions of the TANF program are contained in section 407 (entitled, appropriately, “mandatory work requirements”). Critically, this section, as well as most other TANF requirements, is deliberately not listed in section 1115; its provisions cannot be waived. Obviously, if the Congress had wanted HHS to be able to waive the TANF work requirements laid out in section 407, it would have listed that section as waivable under section 1115. It did not do that.
Remember all those crocodile tears during the Bush years about the unitary executive? Leaving aside the fact that critics completely misrepresented the doctrine and its application, it seems the left has no problem with a president truly implementing the unitary executive doctrine. Only this time instead of the President being supreme within the Executive branch, he is evidently supreme over the entire federal government.
There will of course be no repercussions from this action. While it might be cathartic to pound the keyboard about the spineless Republicans, no amount of caterwauling can change the fact that the overwhelming majority of Democrats will ensure that no corrective action is taken. It was hard enough to get a contempt vote in the House against Eric Holder. Do you think the Democrats will really allow a serious investigation, or even more?
And that’s a true pity. There used to be a time when partisan identification was almost secondary to institutional concerns. Congressmen valued the independence and authority of their own branch of government, and simply sharing party affiliation with the president didn’t prevent Congressmen from jealously guarding their prerogatives. Inter-branch rivalries were an essential element in safeguarding our republic. Today that is gone. The same committee (Oversight) that has been commendably fastidious in investigating Fast and Furious will lay down like neutered dogs should Mitt Romney win the presidency. The committee was sure loath to investigate President Obama when controlled by Democrats two years ago.
This is truly a bi-partisan issue. Congress has completely abandoned its role as an independent, co-equal branch of government. The very fact that we are so consumed by the presidential campaign is a sad reflection of how pre-eminent the presidency has become.
Congressional Democrats should be just as furious as Congressional Republicans over Obama’s actions, regardless of how they feel about the policy. Wouldn’t it be nice if Congress as a whole regained a sense of institutional pride and reasserted their place in the federal framework? Sadly that’s as realistic an expectation as hoping that John Boehner will become John Rambo.
Good or bad, this is what you get with Newt Gingrich:
GOP presidential frontrunner Newt Gingrich said Congress has the power to dispatch the Capitol Police or U.S. Marshals to apprehend a federal judge who renders a decision lawmakers broadly oppose.
Gingrich says if there is broad opposition to a court decision, Congress should subpoena the ruling judge to defend his or her action in a hearing room.
When asked if Congress could enforce the subpoena by sending the Capitol Police to arrest a judge, Gingrich assented.
“If you had to,” Gingrich said. “Or you’d instruct the Justice Department to send the U.S. Marshall.”
Gingrich cites the 9th Circuit’s decision that reciting the Pledge of Allegiance is unconstitutional as a prime example of why such a reform would be necessary. It’s easy to use examples like this of judicial indiscretion in order to justify such drastic action. Yet what of judicial interventions where the Court and not the legislature is acting in accord with the Constitution? I can think of several examples where conservatives cheered – rightfully – when the Supreme Court overturned an act of Congress. In US v Lopez, US v. Morrison, and Citizens United v. FEC, just to name a few cases, the Supreme Court acted on the side of the Constitution as opposed to Congress, and did so presumably against the majority will. As we speak the Supreme Court is set to hear arguments about the individual mandate and other aspects of Obamacare, and once again conservatives (again rightfully) will be hoping for the Court to rule against the democratically elected branches.
No one is more aware than me of how out of control the judiciary has been, particularly since the age of FDR. What Gingrich and other populist-conservatives fail to appreciate is that the judiciary’s wholesale assault against the Constitution is but a symptom of what plagues this Nation. After all, how did we wind up with a judiciary willing to disregard the Constitution? They didn’t just appear out of magic. Years of progressive education instilled these judges with an attitude that the Constitution is a “living, breathing” document that ought to bend to the whims of the age. More importantly, it was democratically elected leaders like FDR who put these men and women on the courts.
Furthermore, it is odd to suggest that one of the ways to stop the politicization of the judiciary is to further politicize the judiciary. Will judges act as independent arbiters of the Constitution if they know they are going to be hauled before the legislature for making the wrong call?
Long story short, I don’t think Gingrich is entirely wrong to highlight the problems of the judiciary. It absolutely must be a theme of this and any federal campaign. But Gingrich is missing the forest for the trees in singling out the judiciary when it’s an entire political philosophy – and, for that matter, political party – that is the problem.
Another thing that strikes me about this statement is how unrealistic it is. Even if Gingrich becomes president and has resounding Republican majorities in both Houses there is virtually no chance that anything like this will happen. This is mere bombast. Now, it is perhaps an exercise in rhetorical exaggeration used to highlight an important issue. But ultimately this reveals a problem that goes beyond Newt, and it is the absurdity of our presidential campaign system. Each candidate feels compelled to offer pie in the sky proposals in an effort to appeal to some constituency. Even more troubling is that the underlying attitude is that the president is some kind of emperor as opposed to the chief executive of a constitutional republic. Even though this particular proposal is likely going nowhere, it is a sad fact that the presidency has become a hyped up institution that has grown well beyond the powers outlined in the Constitution. So the ultimate irony is that while Newt is proposing a radical plan under the guise of restoring balance to the Constitution, he is only furthering the imbalance of the Constitution and the respective powers of each branch of government. And while the Star Wars prequels may have been otherwise useless, at least they taught us a valuable lesson about trying to “restore balance” to anything.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. – Article II, Section 2
It’s not a good feeling agreeing with Dennis Kucinich. Finding myself on the same side of an issue as Kucinich makes me seriously reconsider my opinion. But as they say, even a bind, deaf, paralyzed, rabies-afflicted squirrel finds a nut every now and again.
It’s less distressing to disagree with Charles Krauthammer. He’s usually spot on, but he tends to go off the rails when it comes to foreign policy. Not always, mind you, but in Krauthammer you can see the legitimate difference between neoconservatism and traditional conservatism. Last night he had this to say about the War Powers Act and President Obama’s
war hostilities kinetic military action in Libya:
KRAUTHAMMER: I understand why Congress wants to retain prerogatives, as does the president. I’m not surprised that Durbin would act this way. I am surprised that so many Republicans are jumping on the war powers resolution. They will regret it. If you have a Republican in office, you have isolationists Democrats trying to restrain his exercise of his powers under constitution and the Republicans aren’t going to like it.
I would not truck in war powers resolution. I have also think the administration’s defense of what it is doing is extremely week and misguided. Obama’s answer essentially is well, the resolution is out there. But it’s not relevant because it isn’t really a war, which is absurd.
BAIER: We’re not in hostilities.
KRAUTHAMMER: Right. What he should say I, like my other predecessor, I do not recognize the legality of this act and its authority over the presidency. That’s where he should make his stand.
BAIER: When he was Senator Obama he spoke the opposite.
KRAUTHAMMER: And as a president he is implicitly supporting the resolution saying it doesn’t apply here. It implies if it were a real war, as he pretends it’s not. I have to comply. No president ought to do that.
I agree with him with regards to Obama’s duplicity. I also share his skepticism about the War Powers Act. But he’s wrong about the rest. Continue reading
I’ll leave it up to others on the blog to discuss the merits of the compromise on taxes and unemployment benefits recently reached between President Obama and Congressional Republicans. For what it’s worth, I’d probably vote for it were I a member of Congress (shudder), but I do think that the Republicans could have pushed a little harder on certain measures.
What fascinates me as a student of American history are some of the reactions, and also some of the reactions to the reactions. First of all, Congressional Democrats have rejected the measure in a non-binding caucus vote. This has caused Jim Geraghty to ponder:
Normal? No. But I think this is a positive development in a way. Continue reading