A recent hearing of the House Judiciary Committee examined President Obama's decisions to waive or suspend the enforcement of laws. George Washington University law professor Jonathan Turley had this exchange with Chairman Bob Goodlatte (R-VA):
REP. BOB GOODLATTE (R-VA): Professor Turley, the constitution, the system of separated powers is not simply about stopping one branch of government from usurping another. It's about protecting the liberty of Americans from the dangers of concentrated government power. How does the president's unilateral modification of act of Congress affect both the balance of power between the political branches and the liberty interests of the American people?In his prepared statement, Turley elaborated. He discussed signing statements, nonenforcement orders, and nondefense orders, which arise when presidents decide that their administrations will not defend a challenged law in court.
JONATHAN TURLEY: Thank you, Mr. Chairman. The danger is quite severe. The problem with what the president is doing is that he's not simply posing a danger to the constitutional system. He's becoming the very danger the Constitution was designed to avoid. That is the concentration of power in every single branch.
This Newtonian orbit that the three branches exist in is a delicate one but it is designed to prevent this type of concentration. There is two trends going on which should be of equal concern to all members of Congress. One is that we have had the radical expansion of presidential powers under both President Bush and President Obama. We have what many once called an imperial presidency model of largely unchecked authority. And with that trend we also have the continued rise of this fourth branch. We have agencies that are quite large that issue regulations. The Supreme Court said recently that agencies could actually define their own or interpret their own jurisdiction.
It is often difficult to separate the merits of the underlying policies from the means used to achieve them. It so happens that I agree with many of the goals of the Administration in the various areas where the President has circumvented Congress. However, in the Madisonian system, it is often more important how you do things than what you do.
There is ample room given to a president in setting priorities in the enforcement of laws. A president is not required to enforce all laws equally or dedicate the same resources to every federal program. Even with this ample allowance, however, I believe that President Barack Obama has crossed the constitutional line between discretionary enforcement and defiance of federal law. Congress is given the defining function of creating and amending federal law. This is more than a turf fight between politicians. The division of governmental powers is designed to protect liberty by preventing the abusive concentration of power. All citizens –Democratic or Republican or Independent – should consider the inherent danger presented by a President who can unilaterally suspend laws as a matter of presidential license.
One of the greatest dangers of nonenforcement orders is not what it introduces to the tripartite system but what it takes away. The Framers created three “equal” branches but the legislative branch is the thumping heart of the Madisonian system. It is the bicameral system of Congress that serves to convert disparate factional interests into majoritarian compromises. In this sense, Congress is meant to be a transformative institution where raw, often competing interests are converted by compromise and consensus. One of the most striking aspects of the recent controversies involving presidential nonenforcement is that they involved matters that were either previously before Congress or actually under consideration when President Obama acted unilaterally.
The role of the legislative process in stabilizing the political system is key to the success of the American system. Madison saw the vulnerability of past governmental systems in the failure to address the corrosive effects of factions within a population. The factional pressures in a pluralistic nation like the United States would be unparalleled and Madison understood that these factions were the expression of important political, and social, and economic interests. As Madison explained, “liberty is to faction what air is to fire, an ailment without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.” Congress is where these factional interests coalesce and convert in an open and deliberative process.
The point of this background discussion is that the loss caused by the circumvention of the legislative branch is not simply one branch usurping another. Rather, it is the loss of the most important function of the tripartite system in channeling factional interests and reaching resolutions on matters of great public importance.