Commentary: Restraining Executive Power (September, 2015)

By John McClaughryJohn McClaughry

The founding fathers of Vermont inserted into our 1786 Constitution the prescription that “The Legislative, Executive and Judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the others.” This reflected the writings of the French Baron Montesquieu, whose 1748 book “The Spirit of the Laws” profoundly influenced American republican thinking.

Although not so clearly stated, the same premise underlies the Constitution of the United States (1787). James Madison, a Montesquieu admirer and the principal figure of the Constitutional Convention, argued that the Congress, the president and the Supreme Court were separate, with distinctly different powers, but necessarily interrelated. He argued that the constant tension among the three departments would work to prevent any one of them from overriding the others and creating a despotism.

All of America’s Founders rejected monarchy. Most of them were concerned not so much with tyrants, as with runaway legislatures. Alexander Hamilton, in particular, argued for energy in the executive, to restrain invasions of the people’s liberties by irresponsible majorities in the Congress.

But not long after the founding of the union, presidents found themselves compelled to take extra-constitutional actions. Thomas Jefferson, an outspoken advocate for a strictly limited and largely invisible federal government, nonetheless ordered the construction of gunboats for which there was no congressional appropriation of funds. He at least honored the spirit of the Constitution by appealing to Congress to vote the funds after the fact, which it did.

During the desperate early days of the Civil War, Abraham Lincoln took a number of actions, such as suspending the constitutional right of habeas corpus, that he deemed unavoidable if the Union were to be preserved. Congress and the Supreme Court largely acquiesced in Lincoln’s sweeping assumption of powers, although the court did strike down his use of military commissions to try seditionists in the North.

On Oct. 26, 2011, President Obama opened a new chapter in unconstitutional executive power grabs. He issued an executive order known as “We Can’t Wait.”

The extra-constitutional executive grew under Woodrow Wilson and blossomed under the 13 years of Franklin Roosevelt. In 1941 he decreed an “unlimited national emergency,” and relied on his war powers to do whatever he wanted for the next four years.

In 1942, for instance, Roosevelt told Congress that he personally would repeal a farm law provision unless Congress did it first. “In the event that Congress should fail to act, and act adequately, I shall accept the responsibility and I will act.” Even the strongly pro-executive Hamilton would have been horrified.

By his Executive Order 9066 of 1942 Roosevelt stripped Japanese-American citizens of the West Coast states of their right to due process of law, and packed them off to resettlement camps until the war’s end. He justified this by invoking the war power, and the Supreme Court supinely accepted his argument.

A decade later President Truman, annoyed by labor-management deadlock, simply seized the nation’s large steel mills by executive order. The Supreme Court declared this unconstitutional and reversed.

On Oct. 26, 2011, President Obama opened a new chapter in unconstitutional executive power grabs. He issued an executive order known as “We Can’t Wait.” “We can’t wait if Congress fails to do its job. So where they won’t act, I will.” A week later he added, “We decided to take matters into our own hands.”

Obama’s subsequent administration of the Affordable Care Act (“Obamacare”) has now given us dozens of examples of arbitrary rewriting of the laws by an executive.

For instance, Obama expanded the law to allow ineligible illegal immigrants to receive benefits if they were part of a family group where one member was eligible. He directed that the employer mandate be postponed a year beyond the law’s requirement, to prevent a political outcry before the 2014 elections. He exempted U.S. territories from burdensome insurance requirements despite the law’s clear statement that they were included.

Most notoriously, Obama allowed the ACA premium subsidies to flow through a federal insurance exchange, although the law clearly said that the credits were to flow only through an exchange “established by a state.” In an embarrassingly wrong opinion, six Supreme Court justices rewrote the law, on the ground that the purpose of the ACA could not be achieved unless the plain words of the act were ignored.

Montesquieu, as adapted by Madison, had it right. Especially when not in a war, the Constitution bars the executive from simply writing his own laws for his own political advantage. When he continues to do so, the legislative and judicial departments must rein him in. Otherwise we no longer have a Constitution that sets forth the government’s powers, specifies the limitations on those powers, and declares the rights of the people that cannot be infringed.

- John McClaughry is the  founder and vice president of the Ethan Allen Institute

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