Executive orders: Part of the framers’ grand plan
President Barack Obama has used his executive authority to stop deporting undocumented immigrants who had been brought to the United States as children. The administration has also announced that it will stop requesting mandatory minimum sentences for low-level, non-violent drug offenders.
Obama is now using executive orders and other unilateral exercises of executive power to advance his agenda rather than wait on Republicans in Congress.
The GOP has grown increasingly outraged by the president’s actions. House Republicans last week passed the “Enforce the Law Act,” part of a continuing campaign to label any action by the president as “executive overreach.” House Speaker John Boehner (R-Ohio) earlier this year felt the need to “remind” the president that “we do have a Constitution.”
Our Founding Fathers, however, would not be surprised that Obama has engaged in unilateral actions. It would surprise them if he hadn’t.
The founders foresaw the need for a strong president who is capable of unilateral action. Indeed, one danger they sought to avoid was an ineffectual president who is incapable of executing the nation’s laws.
The framers learned the hard way, under the Articles of Confederation, about the difficulties created by governing without an executive branch. Scarred by their experiences under England’s King George III, the drafters of the Articles of Confederation decided not to create an executive branch at all. That government lasted just eight years and the absence of an executive branch was a major weakness contributing to its demise.
“A feeble Executive implies a feeble execution of the government,” Alexander Hamilton wrote, “. . . . and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”
The framers wrote the Constitution in part to remedy the lack of an executive branch under the Articles of Confederation. They knew that effective governance required an executive branch to enforce the laws passed by Congress. So they established a strong executive branch headed by a president with the authority to sometimes act alone where the national interest requires it. Then they gave the president express powers and responsibilities, including the obligation to “take Care that the Laws be faithfully executed.”
Unlike Congress, which was required to meet only once a year, the president had to always be on duty fulfilling his responsibilities. The framers did not want a monarch, but they recognized that a strong president who is capable of unilateral action is no threat to the republic, because of the separation of powers, which Obama’s critics claim he threatens. Just as the Constitution gives some express powers to the president, it gives others to Congress and still others to the courts. The other branches can use these powers to check a president who goes too far.
One manifestation of a president’s responsibility to “take care that the laws be faithfully executed” is prosecutorial discretion — the authority to determine how best to enforce the nation’s laws.
As Supreme Court Justice William Rehnquist wrote nearly 30 years ago, an “agency’s decision not to prosecute or enforce [a law] . . . is a decision generally committed to an agency’s absolute discretion.”
After all, the executive branch is in the best position to weigh competing priorities and determine how best to enforce the law. For similar reasons, courts generally defer to executive branch interpretations of the law where there is ambiguity in Congress’ wording — as is often the case.
While not unlimited, this discretion means that Obama has far more latitude than his critics say he does in making decisions about what the law means and how it can best be enforced. This authority extends to matters like deportation and federal law enforcement.
We should not deprive future generations of a system that has safeguarded effective governance for more than 200 years because some of Obama’s opponents want to score political points. House Republicans and Obama’s critics should heed the lesson that the founders learned long ago: A strong president does not a dictator make.
PHOTO (TOP): President Barack Obama signs an executive order to raise the minimum wage for federal contract workers to $10.10 an hour starting next year, during an event at the White House in Washington, February 12, 2014. REUTERS/Kevin Lamarque
PHOTO (INSERT): Signing of Constitution by Howard Chandler Christy. Courtesy of Architect of the Capitol
PHOTO (INSERT): President George Washington, lithograph of painting by Gilbert Stuart. Courtesy of LIBRARY OF CONGRESS.