Placing Separation of Powers in a Fix

This business of administrative fixes to duly enacted statutes, like the one President Obama announced to the Affordable Care Act Thursday, may or may not produce improved policy, but it is certainly horrendous constitutionalism, and those who utilize it today are fated to howl about it tomorrow. It is a good rule of constitutional thumb never to create a power one would not trust when placed in the hands of one with whom one disagrees. Democrats ought thus to ask: Will it be fair game for future Republican presidents unilaterally to alter statutes, much in the manner of a surgeon excising tumors or bypassing arteries, merely because the old-fashioned route is inconvenient? (Suppose Congress raises the minimum wage; a Republican president, opposing the policy, exempts businesses from it by means of prosecutorial discretion: “Administrative fix”!)

It has happened under the Affordable Care Act twice now, once to delay the employer mandate and now to inhibit the cancellations of insurance policies. In each case, the legal basis has been prosecutorial discretion, the president’s alleged authority to decide when and whether to enforce a law.  (What was that about “faithfully execute?”)  Both actions seem reasonable enough on policy grounds.  Both also make the Bush-era signing statements seem like models of constitutional deference by comparison.  Signing statements, for all the abusive purposes to which they are put, are at least keyed to constitutional objections. Administrative fixes circumvent Congress because going through Congress is a pain in the neck.

House Minority Leader Nancy Pelosi suggested as much Thursday: “It could be an administrative fix, it could be a legislative fix.” (Translation: Results alone count; process, even constitutional process, is immaterial.) Then: “I would rather it be done administratively, because then it could be done much more quickly without any accompanying agendas.” Substitute “opinions” for the sinister-sounding “agendas” and one gets a sense of the, well, agenda.  Regardless, what Pelosi says is doubtless true: Administrative fixes are speedier. It is also true that speed mixes with legislation as well as it does with teenage driving. One of the salutary functions of the separation of powers is its slowing effect, which allows passions to dissipate and deliberation to occur. Its consequent or at least purported inefficiency has been a topic of complaint since Woodrow Wilson’s Congressional Government.

Wilson wanted what the presidency has become: an all-purpose policymaker-in-chief. The presidency thus conceived embodies the raw will of the people, whose opinions are regarded not in all the myriad subtleties and permutations Congress captures—still less in the “refine[d] and enlarge[d]” form in which Federalist 10 seeks them—but rather in the binary black and white of the Executive Branch. Deliberation, once tied to the virtues of patience and deferral of gratification, becomes associated instead with intransigence and gridlock, the gravest of political sins.

The bulk of political reporters, for their part, cannot comprehend the questions of legitimacy that are involved—unsurprisingly, not a single question directed at President Obama during his Thursday news conference on this topic pertained to the constitutionality of what he had just announced—because they are too intoxicated by the simple exercise of power and the vapid bottom-line consumerism (“how it affects you”) of the news.  (One admirable exception here.)

All this is hostile to the separation of powers, whose primary function is the prevention of tyranny. If presidents in charge of executing the law are also in charge of making it, opportunities for abuse abound. (Imagine being pulled over by a police officer who has just imposed an “administrative fix” on the posted speed limit.) It is those possibilities, not the policy in this case, that pose the problem.

It is also why members of Congress should pause in their headlong rush to assail or defend the Affordable Care Act on policy grounds to unite in defense of the institution’s constitutional prerogative to legislate. The Madisonian system assumes they will, and that, “the interest of the man” being “connected with the constitutional rights of the place,” members’ institutional fealty to their branch will trump any loyalties or antipathies they harbor toward the president. Of course, it also assumes members of Congress do not want the job just to have it; they want it to exercise, and hence they will defend, the power that attends it. Alas, things change.

Reader Discussion

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on November 15, 2013 at 09:23:29 am

I was with you until "binary black and white of the executive branch." What on earth does that mean? Can't one make a good empirical argument that executive branch agencies understand the world in subtler shades of gray than legislators can hope to do?

Also, it is very funny for you to bring up speeding in this context, because it is a policy we all know to be enforced quite differently from the letter of the law. If you were pulled over for going 26 in a 25, what would actually shock you is the cop's unwillingness to apply the standard administrative fix. Indeed, you might almost go so far as to think of applying the letter of the law as an abuse of power. So it's a problematic example for your argument.

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Philip W
on November 18, 2013 at 12:15:50 pm

Isn't the Bill of Rights 1689 relevant to the President’s claim that he has the power to alter statutes through the exercise of “prosecutorial discretion?” The specific provisions are: (1) that the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal and (2) that the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal. See Francis Hargrave and Charles Butler, Notes on Lord Coke’s First Institute, vol. 3, n. 170 (1794), where it is observed that when the dispensing power was applied to a statute it was equivalent to the repeal of that statute (and thus in derogation of the legislative power of the two houses of Parliament). What distinguishes a broad-based exercise of “prosecutorial discretion” from suspension or dispensation of duly enacted laws?

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Gary H
on November 08, 2018 at 05:57:18 am

[…] (Yes, President Obama’s Constitution was anti-originalist; yes, yours truly called him out on it here, here and elsewhere; no, he is not president right […]

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Political Originalism and the Problem of Power

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.