Carrying Congress

Lets set the WABAC machine for just about a decade back, and contemplate some of the words that then-candidate Barack Obama offered up in his pursuit of the Presidency:

I taught constitutional law for ten years. I take the Constitution very seriously. The biggest problems that were facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all, and that’s what I intend to reverse when I’m President of the United States of America. – Barack Obama, 2008

 

While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability. I will not use signing statements to nullify or undermine congressional instructions as enacted into law. – Barack Obama, 2007

 

Congress’ job is to pass legislation … The president can veto it or he can sign it. But what George Bush has been trying to do as part of his effort to accumulate more power in the presidency. … He’s been saying, well I can basically change what Congress passed by attaching a letter saying ‘I don’t agree with this part or I don’t agree with that part, I’m going to choose to interpret it this way or that way.’ – Barack Obama, 2008

 

We, of course, know the punch line. President Obama used executive orders and signing statements in an unprecedented fashion, to the point of actively defying both Congress and the Courts. His excuse, defended vigorously by his acolytes in the press and on the street, was that Congress was failing to act and that the Republican Party was being actively obstructionist. Not only actively, but petulantly: one narrative is that the GOP couldn’t stand that Obama won, and decided to do everything in its power to undermine his presidency. The absurdity of thinking that the last was a unique situation, that it was the first time an opposition party decided to oppose notwithstanding, the reality is that the GOP won Congress exactly the same way Obama won the Presidency – by winning elections. Thus, to these ears, the “I’m being forced to use my pen and phone against my principles because the other side is un-American” rang hollow. Past presidents of both parties have managed to work with opposition Congresses (including, recently and obviously, Clinton and Reagan) to achieve policy changes.

I warned those cheerleading Obama’s executive power grab of the precedent being set, a precedent that an “undesirable” President would certainly avail at a later date, as did many others. Lo and behold, here we are, today, witnessing President Trump systematically unravel most or all of what Obama raveled with that pen and phone. While most on the Left continue their freakouts over his tweets and other outrages of the moment, and many are proclaiming victory at his failure to kill Obamacare or start his wall, some have indeed noticed that Trump’s executive orders are taking down their messiah’s legacy. Two recent actions have awoken many more to this on-going trend: the decertification of the Iran deal, and the termination of insurer subsidies under ACA.

Both these actions have, of course, been mischaracterized (rather willfully, I suspect) by the Trump-bashing press. Obama artfully dodged the need for Congressional approval of the Iran nuke deal, by setting up a system where the President “certifies” compliance by Iran every 90 days. Trump didn’t end the Iran deal, but rather “de-certified” it, essentially kicking it back to Congress to do what it wishes. Of course, the liberal press, which is all that comes up if you Google the matter, is screaming bloody murder about it. Similarly, the decision to end insurer subsidies is being presented as a catastrophe for the poor who’ve supposedly benefited under ACA. The other aspects of Trump’s action aside, it remains that those subsides themselves were illegal. ACA never appropriated any money for those subsidies, and only Congress has the authority to change that. Obama’s unilateral decision to distribute those subsidies was slapped down by federal court, but they continued anyway. Trump, in this case, struck a blow both for the rule of law and for the separation of powers.

Trump has undone many more Obama executive over-reaches, including the (unratified by Congress) Paris Climate Agreement, DREAMer amnesty, federal funding of overseas agencies that perform abortions, a number of Obamacare mandates, bans against gun purchase by some Social Security recipients, the Clean Water rule that turned puddles into EPA-regulated waterways, the Clean Power plan, and literally hundreds more.

Those of a limited-government bent who are inclined to look for good news can find plenty in this parade of executive orders. Trump’s excesses and bad instincts notwithstanding, his executive history so far has been one of systematically and substantially rolling back government regulatory excess, and that’s a Good Thing. But, even this Good Thing comes with its peril. While Trump has indeed been more circumspect and constitutional in his wielding of the Executive Order than Obama was, it remains that he’s doing what should have been done by Congress, both under Obama and under Trump.

Republican voters had high hopes for the Congressional majorities they handed to the Party – the House in 2010, and the Senate in 2014. The House majority fulfilled some of those hopes, forcing a tax compromise on Obama and thwarting aspects of his progressive agenda that he could not achieve via executive overreach. The Senate majority? Not quite so much – other than preserving the ideological balance of the Supreme Court. Republicans, at least those who either supported Trump or didn’t go so far as to presume his election was the end of days, hoped that a GOP that controlled both Congress and the White House would make good on some big policy promises, including repeal of Obamacare.

Politicians throughout history have been really good at disappointing voters, and today’s crop proved no different. While we can attribute the GOP Congress’s inability to get big stuff done to any of a range of factors, excuses don’t absolve inaction. They may explain inaction, but they don’t absolve it. Going into the why and what-for is a matter for another day. What’s obvious today is that the Republican Congress did a pretty lousy job of preventing Obama’s usurpation of its role when he was President, and it is failing to fulfill its campaign promises now that a President of its own party is in the White House.

One does not become president without being a person of action. Thus, it would be wildly outside reason to expect that either Obama or Trump would sit on his hands and merely gnash teeth at Congressional inertia or gridlock. So, of course Obama went back on his word re EOs and signing statements, and of course Trump continued in that vein. Trump, so far and to his credit, has been more “constitutional” than Obama was, and we should be happy about that. But, we shouldn’t rely on it or expect it to continue. A system of checks and balances and a division of power were put in place in this country so that citizens would not have to be totally beholden to the whims and good graces of any one person, even one elected President. It would take a man of Solomonic wisdom and Washingtonian restraint to refrain from acting outside the strict scope of the Presidency when it appeared that the only way to get stuff done was by doing so. Thus, it falls to Congress (and the Court) to re-establish the proper separation of powers.

I don’t see that happening any time soon. Politicians, as a rule, have as first priority getting elected, and as second priority getting re-elected. The slim majority the GOP has in the Senate gives quite a bit of power to those who are “outliers,” whose constituencies don’t quite match up with the party’s as a whole. Thus, we have Murkowski and Collins as “liberal” outliers and Paul and Lee as “libertarian” outliers. There are stark differences therein, and there are other members and segments of the elected Senate with conflicts of vision. Normally, party leadership might look to work around or disempower the outliers by finding some members of the other party who’d be on-board on a particular issue – they certainly exist in most cases – but the political climate is a nihilistic one, with the Dems seeing stone-wall opposition as their path back to power (I remain unconvinced, but they aren’t listening to me).

Thus, we have the truly bizarre spectacle of the Untethered Orange Id doing Congress’s job, after the fact. The results have generally been good, and only the petulant refuse to praise when it’s due. The peril is, of course, that absent a Congressional reclamation of its proper role, the Obama precedent/doctrine might result in Trump doing stuff outside the President’s proper purview that we don’t like. The only solution to that peril is for Congress to decide, on both sides of the aisle, that it wants to preserve its power. And, to preserve its power, Congress has to wield it. I’m not holding my breath. Politicians can only disappoint us if we don’t expect to be disappointed.

You know what’s the oddest thing in all this? The least disappointing politician around these days is Trump himself. He’s fulfilled everyone’s expectations, whether those were great, good, bad or terrifying.