A Disturbing New Trend?

Those of you following the news have probably heard that the implementation of the portion of the Affordable Health Care requiring large employers to provide health care has been postponed by a year so that its effects and feasibility can be further assessed.  For those of us who follow constitutional news, this should not be of any surprise.  This action is just the latest in many which reflect a new and perhaps disturbing trend in constitutional law where by the executive branch is exercising more control over what laws it chooses to enforce.

In a perfect world, laws are to be created by the legislators, and the executive branch proceeds to enforce said laws.  The executive branch is really not supposed to have any discretion in enforcement of the laws not within the powers and duties outlined to it by the legislator.  But one of the trends that has been developing under Obama’s administration is the executive branch exercising greater discretion in which laws it enforces and how.   I see this as probably the most troubling development for the constitution under Obama, more so than perhaps those activities associated with drones or the NSA.  However, even more troubling is that it is hard to blame this completely on Obama as there does seem to be a dynamic developing where this is actually becoming a new norm.

Obama certainly has no trouble picking and choosing with laws.  When he took office, he notified the Justice Department, that regarding medical marijuana laws, the federal government would not arrest individuals who, though in violation of Federal drug laws, were legal under state laws (he then subsequently changed his mind, and then changed it again, and now with several states having outright legalized it, there is a degree of ambiguity coming from the administration about what it plans to to).  However, federal drug laws, which were enacted by the legislature, clearly say that the federal government should have been enforcing those law against medical marijuana facilities, and that under any interpretation of the constitution the Executive branch not only has the ability to do this, but the obligation.  Certainly the Executive branch has the discretion regarding funds and feasibility of enforcement of the law, if enforcing a certain law (like the prohibition of marijuana) carried with it high costs and logistical impracticability which took away from the government’s ability to enforce other, more important law, the president can certainly order executive officers to put more priority to the enforcement of those more important laws.  However, for a president to refuse to enforce a law purely out of discretionary, non-logistical reasons, it is really an act of the executive branch legislating, and hence constitutes an abuse of discretion by the executive branch.

But when Obama did this, nobody cried foul, liberals are sympathetic to medical marijuana because they generally do not support the harsh drug laws, conservatives are sympathetic to it because they generally support state’s rights.  Because of this, nobody actually tried to challenge Obama’s decision, because most people believed that it was in general good policy.  But the responsibility of creating good policy is supposed to be the legislature’s.  In other words, in the perfect world, if our federal drug laws regarding marijuana are bad policies, congress should go back and change the laws to correct these imperfections.

Then of course a series of laws were passed by Obama, including the banking regulations under Dodd-Frank, and the Affordable Health Care Act.  Both of these laws were passed rather hastily, and done under the understanding that congress would come back and amend it after committees could fully explore their effects.  Dodd-Frank, in many ways, was simply regulation for the sake of regulation and done because after the 2008 crisis, everyone was in agreement that something had to be done to keep this from happening again, and both conservatives and liberals agreed that a reform in the banking laws was the best way to go (even if they disagreed as to what reforms needed to be done).  Though Dodd-Frank does have some good regulations, there are other parts of it which are contradictory or unclear, and certainly needed to be addressed before enforcement.  Obamacare too contained many complicated, sometimes contradictory provisions.  The Senate passed it so that it could get these reforms in place, but with the understanding that obviously it would have to be amended in the future to tinker out some of its problematic features.

But then, in 2010, a wave of congressional elections brought in a new crew of tea party legislatures to Washington.  These individuals had a radical agenda, and sought to bring about radical reform.  Their new attitude was not merely to disagree with policies they didn’t like, but to do everything in their power to repeal them.  As such, the use of the filibuster has been greater under Obama than all the other president’s in history combined.  Washington came to a complete gridlock, and could barely even pass a budget without it turning into some historic showdown.

This created a problem for Dodd-Frank and Obamacare, because the gridlocked Congress has been unable to make any amendments to them.  Instead, the tea party legislatures have called for their outright repeal, and rather than see them corrected to function better, they simply have refused to compromise to any degree, completely holding up the entire process and demanding that they get their way.  However, the behavior of these obstructionists has been quite unreasonable, the Democrats, as predicted, have not caved in to their radical demands, and instead both groups have been in a perpetual staring contest to see who blinks first.

We are now dealing with an instance where our legislature is quasi-suicidal, as members of congress have shown their willingness to plunge the nation into great harm in the name of demanding reform.  Things like the sequester, which had for decades been used as a simple incentive to encourage agreement (as the understanding was that congress would never be stupid enough as to never let this actually occur) have actually now gone into effect.  Budget showdowns have pushed the government to the brink of an unnecessary default.  For whatever reason, the tea party believes that there is a level of great urgency to this which justifies obstructionist behavior that actually brings harm to the nation in the short term, perhaps under the belief that in the long term it will be good for the country and constitution.

But there is very good reason to believe that in the long term such behavior will be bad for the country and the constitution.  Unable to get Dodd-Frank amended, the executive branch has been withholding enforcement of nearly 2/3 of its provisions.  This is because the executive branch realizes that many of these provisions in Dodd-Frank will bring harm to the economy if they are enforced, and should be amended to be more functional.  In a perfect world, the legislature would set up committees, call in experts and economists and figure out the best ways to amend the law so that it does not cause any harm.  However, this is not a perfect world, instead the legislature has refused to do any of this and instead put large sweeping demands on the country.  Thus, something as simple as amending banking regulations, is used as collateral for things which are wholly unrelated like getting rid of the EPA.  This is of course because the obstructionists see themselves as under a duty to bring about wide sweeping change, and that they are not just against individual laws they think are bad, but against what they see as an entire idea of what the government should be doing.  Thus, seemingly unrelated laws are seen as the same in their mind, as they both are part of what they view as the enemy.  Because they are both part of the obstructionist’s idea of what “the enemy” is something like financial reform is seen as being the same as environmental law, despite the fact that they are two wholly separate things.

Now the ideas of the obstructionists are in fact absurd, and dangerous.  And the executive branch realizes this.  However in the meantime they are forced to deal with the fact that they are dealing with a congress which actually wants to see bad laws enacted which will hurt the economy, because the obstructionists unreasonably believe that it will somehow help to change the tide and bring about a radical new era in American history.  In reality the most likely thing it will do is only make things worse.

So, stuck between a rock and a hard place, the Obama Administration has chosen to take matters into its own hands, and instead simply refuse to enforce laws which it knows will hurt the country.  He has done this with a number of laws including Dodd Frank and now with the latest decision regarding Obamacare.  At the same time, the Administration is using its regulatory powers to the fullest extent, as the gridlock in Congress prevents the legislature from doing its normal job of being able to react to changed conditions and alter government practices to ensure that laws are being well made.  Obama has been using the power of executive order and regulation to the fullest extent that he can.

Just like Obama’s decision to not enforce federal marijuana laws, the actions regarding Dodd-Frank and Obamacare have not been met with scorn by either parties, despite the questionable legality of such actions.  Conservatives are happy because they simply don’t want Dodd-Frank or Obamacare to be enforced, and so any delay in enforcement is seen to them as a vindication that these laws are bad.  Liberals don’t want to see the country be harmed needlessly because the government is forced to enforce bad policies.  And it is hard for any reasonable person to disagree with this, after all, nobody wants to have bad policies being enforced.

But this doesn’t mean that this dynamic is a good thing for the country.  The executive branch has the important job of enforcing the laws made by congress, but as the commander in chief, the president also has the job of protecting the country from harm.  If we find ourselves in a position where the legislature is actively trying to harm the country, the president is in a constitutional conundrum, and one can argue that whether he enforces harmful laws and arbitrarily hurts the country, or if he refuses to enforce certain parts of certain laws, he may be acting unconstitutional in either decision.  Certainly, enacting purposely harmful laws is a terrible and dangerous precedent, but refusing to enforce laws is also a dangerous precedent.

Because now what is happening is that congress is actually undermining its own authority and giving more authority to the presidency.  A future president could decide to radically up the enforcement of federal drug laws, or outright refuse to enforce them at all, making it so that citizens could have their legal duties and situations changed purely by presidential decree, rather than by legislation.  A future president could decide to enforce all of the provisions of Obamacare or Dodd-Frank, or perhaps not enforce any of them.  Even more scarily, a future president may decide to halt Planned Parenthood, or the EPA, or even the military, all without any congressional approval.  In effect, you would have the president legislating solely from his own discretion, which would destroy the balance of powers constitutional governance is meant to bring about.

And finally, the day may come when the president actually changes the substantive portions of a law solely through his presidential powers.  A time may come when Obama decides that it is simply not worth it to wait for Congress to change the terms of Obamacare or Dodd-Frank, and he may simply expand his regulatory powers to change the actual rules of the acts themselves.  This would be devastating for democracy and put us into a very serious and dire trajectory.

The obstructionists see themselves as trying to restore constitutionalism and correct what they see as a deviance from the principles and rule of law on which this country was based.  However, thus far, they have only succeeded in creating a dynamic whereby we only move further away from that ideal.  If the legislature is obstructionist and refuses to participate in its role in governance, the executive branch is faced with the decision of either letting the whole thing fall to ruins, or to take control and maintain stability.  And the executive branch will always choose the latter option, and indeed, the latter option is probably the best and most constitutional decision given the situation it is placed in.  However, for the long term health of our Republic, this is a dangerous road to go down, and I fear that it may constitute the end of American Democracy.  However, rather than having it turn into the free market, decentralized paradise that the obstructionists hope for, in all likelihood it will instead turn into a dictatorial, centralized direction whereby even more power is consolidated into the executive branch, rather than less.  This coincides with a deepening divide among the public, which is a recipe for disaster, as we are facing the possibility where a presidential election can radically shift policy from one extreme to another depending on who wins.  The genius of the balance of power created in the constitution is that it makes it so that no matter who is elected president, there are enough checks to power that it will not result in a radical shift in either direction.  However, if that balance is lost, then we face the possibility that a radical president could decree his way into transforming us from a Republic to a much riskier form of government.  If the legislature is able to come to its senses, and once again be able to work together and cooperate to make and amend laws, then perhaps this will only be a blip in American history, and will not constitute a long term trend.  However, if a gridlocked and dysfunctional congress becomes the new norm for congress, then I predict that we will see new norms develop for the presidency as well, and future generations may live under a government which is far different, and far more dangerous than the one which we grew up with.  Either way, this is something which all citizens should be concerned about.