Have a look at our friend Rick Garnett’s short article at Commonweal on the the dangers of executive overreach — in this as well as prior presidential administrations — in response to the generally salutary frustrations of constitutionalism. A bit from Rick’s essay:
The apparent urgency of these challenges prompts many to contend, understandably enough, that we have to act now and dramatically, that something bold must be done, that progress matters more than process, and that—in the words of one of President Barack Obama’s campaign themes—“we can’t wait.”
Last October, for example, after Congress responded coolly to his proposed jobs bill, the president promised—or warned—“If Congress won’t act, I will.” And he has. In a variety of contexts, he has moved on policy and personnel in ways designed to avoid the time-consuming gridlock that sometimes results from procedures mandated and constraints imposed by the Constitution. That document prescribes how high-ranking federal officials are to be appointed and gives the Senate a role in that process. The president—like, but to a greater extent than, other recent presidents—has avoided that check by creating a stable of “czars,” whose selection and portfolios are generally not reviewed by legislators. He has also outdone his predecessors in exploiting the Constitution’s authorization of “recess appointments” to install controversial appointees in powerful positions. Rather than wait for Congress to revise unpopular requirements of the No Child Left Behind law, he has offered to waive those requirements on the condition that states adopt practices, standards, and guidelines supported by his administration. Like other presidents, he has used both executive orders and the administrative-rulemaking process to implement substantive policies that the Republican-controlled House of Representatives would likely reject. And, in a widely criticized effort to leap over the jurisdictional limits imposed by the First Amendment, his administration argued before the Supreme Court that the Constitution’s religious-freedom guarantees should not stand in the way of anti-discrimination lawsuits brought by ministerial employees against religious institutions.
Again and again, we hear the same rationale: “If Congress won’t act, I will,” because “we can’t wait.” This should worry, not rally. In the politics of a free society committed to the rule of law, we (usually) can wait, and even when it seems like we can’t, we sometimes have to. It is easy, but mistaken and dangerous, to equate disagreement with bad-faith obstructionism, and to cast one’s own side as an enlightened vanguard, empowered by this or that emergency to do whatever it takes to achieve unity, to make progress, to bring about change. In this election season, though, what is needed—from candidates and citizens alike, and on both the left and right—is humility, restraint, and patience. These are more than useful life skills. They are constitutional virtues.