Ross Douthat’s New York Times column this past Sunday eloquently warned against Obama’s threatened coup with respect to immigration law. Douthat characterized the action threatened by anonymous White House leakers as “executive fiat.” Douthat rightly condemned the threatened action as “lawless, reckless, a leap into the antidemocratic dark.”
University of Chicago Law School Professor Eric Posner comes to Obama’s defense and responds to Douthat in the New Republic column “Obama is legally allowed to enforce–or not enforce–the law.” Posner holds down an endowed chair at the law school, but this is not an impressive performance. Indeed, I would place it at the kindergarten level, as in this invocation of alleged precedent on Obama’a behalf: “Bush disregarded laws against torture and surveillance in order to prosecute the war against terror.”
According to Posner: “The current threat to the Republic is not congressional tyranny but congressional gridlock—symbolized above all by the costly and ridiculous near-failure to raise the debt limit in past years. If Congress cannot pass any laws because of gridlock, then it has violated its obligations under the Constitution, and accordingly the president has the right to use his enforcement powers to implement policies that serve the public interest.”
Here “gridlock” has become a shibboleth that magically transforms the constitutional requirement of “faithful execution” into royal power to revise, rewrite and waive the enforcement of duly enacted laws. “Gridlock” cuts a rather wide ambit through proposed reform of the existing legal structure set forth in the United States Code. Waving a wand and pronouncing “gridlock” does nothing to enhance the power of the president under the Constitution.
Posner says “gridlock.” I say “disagreement.” Let’s call the whole thing off.
Nietzsche taught “how to philosophize with a hammer.” Posner teaches how to philosophize with a cliché.
In doing so Posner is carrying water for the White House, which floated the argument that when Congress fails to take advantage of an “opportunity to take action” (i.e., adopt Obama’s preferred policy as the law), Obama somehow acquires the power to do so. “Failure to act,” however, is a feature of the separation of powers and of divided government under such a system. The system can really be a bitch, but it doesn’t provide for the usurpation of legislative power by the president or convert the president into a king.
In any event, Douthat responds to Posner in “Anatomy of a power grab.” In his argument with the law professor I declare the Times columnist the winner by a knockout.
Posner doesn’t go through the exercise of correcting Obama’s past pronouncements on the limited nature of the executive power under the Constitution. Only last year, on November 26 in San Francisco, for example, Obama spelled it out to heckler Ju Hong (video below). Dan Spencer collects other examples here, one of which provides: “There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.“