Let’s start off by acknowledging that Obama’s use of Executive Orders are hardly new and groundbreaking since this tactic has been used by every President since George Washington. In terms of actual use or the pure number of Obama Executive Orders, it is not startling. In fact, he averages 33.2 per year thus far which is lower than George W. Bush’s average of 36.4 per year. And it is these statistics that Obama’s supporters often trot out as justification for his use of Executive Orders. Suffice to say, the Executive branch would probably not operate efficiently without directives from on high. For better or worse, there will always be Executive Orders.
But the number of orders or yearly averages tell only part of the story. Instead, we have to look at what those orders are issued for. In the area of Executive branch reorganization, the military, intelligence and foreign relations there can be no doubt that a strong Executive is what our Founders envisioned. A second category is the formation of commissions while a third is the Executive imposition of sanctions against foreign nations under statutory authority. When these areas are factored out from the total number of Executive Orders, we find that Obama’s use of orders is second only to George H.W. Bush.
It is not the gross number of Executive Orders issued, or often the number in areas where it is accepted practice for the President to act through Executive Orders. Instead, it is the quality of the Orders issued in that residual category that many find constitutionally offensive.
For example, the Obama administration is using the concept of prosecutorial discretion to NOT enforce existing laws, especially in the area of immigration. That decision and rationale is opening the door to an approximate 5 million people in this country illegally (key word: illegally). The hypocrisy on the Left of this interpretation is mind boggling. In the aftermath of 9/11, they were quite upset over George W. Bush’s prosecution of the war on terror. Those Bush policies were based on an interpretation by his Justice Department that he was operating within the law. But the Left argued that he was violating international law. Using their very logic, the Obama administration’s interpretation of “prosecution discretion” should also be criticized, but since it advances a Leftist agenda, there is no outcry. Their idea of “discretion” is non-enforcement.
But what if, as has been suggested, a future President invokes prosecution discretion and decides to direct the IRS to turn a blind eye towards the collection of capital gains taxes? Obama himself did not have an answer to that question when asked, instead deferring to the White House talking points on amnesty for illegal immigrants. Once that door of prosecutorial discretion has been opened in this context, it will not be closed.
One needs to look at his excuses for issuing these draconian orders- Congress is not doing their job. He “had” to issue his immigration order because Congress refused to passed comprehensive immigration reform. He “had” to issue orders to the EPA because Congress would not address climate change. He “had” to raise the minimum wage in federal contracts because Congress would not address income inequality (as if a few extra dollars in the dry cleaner services for the federal government will obliterate poverty in America). It is not that he was dealing with an obstructionist and incalcitrant Congress; it was that Congress was dealing with an ineffectual leader in the White House.
If the minimum wage, if immigration reform and if climate change are such important issues to America that they require the President to take unilateral action outside the legislative process, then he should make the case to the American people and to Congress. In fact, he did try to make the case and he was rebuffed in 2010 and 2014 in the midterm elections. Although he won a second term, it was hardly a wholehearted embrace of the Obama agenda as much as it was a “we’re not so sure about the other guy” phenomena.
Now we hear that the White House is considering unilateral action to essentially increase taxes on corporations through executive action. Besides fighting a Revolutionary War against such tactics, it would clearly be unconstitutional since the only way revenue can be raised is through the legislative branch. Every single other Executive Order issued in our history never contemplated such an audacious, power-grabbing view. When money was discussed or implicated, it is always in the context of how to save money for the government through streamlining regulations or strengthening safeguards against wasteful spending. Not a single one came close to unilaterally changing the tax code without Congressional approval.
If allowed and if unchecked, Obama would be the closest thing to a King that this country has ever witnessed. For a person who claims to be a constitutional scholar (he has even in the past stated he does not have the constitutional authority to do the very things he is doing), he has shown and is showing a total disregard and disrespect of the Constitution. Just because he thinks he is correct does not make it correct. The ends certainly does not and should not justify the means.
Perhaps the only bright spot in this whole story is the fact that a future President could rescind his orders. That is what makes the election is 2016 so much more important. Do we want or can we afford a third Obama term?