Obamacare, the NSA’s Metadata Collection Program, and the Separation of Powers

US-POLITICS-OBAMA-RETURNThe brilliant light that burst over the Northwest quadrant of the nation’s capital Thursday was not a sunrise. Illuminating the skies above the White House was the light bulb of discovery, in this case of an antiquated constitutional ideal: the separation of powers. The NSA metadata program having been authorized by Congress, the President announced plans to seek its reform by Congress. He is to be commended for involving the legislative branch of government in a decision involving, well, legislation.

But it would be easier to credit the White House with a renewed commitment to constitutionalism had the NSA announcement not come on the heels—a scant 48 hours—of yet another administrative decree delaying implementation of the Affordable Care Act, this time giving individuals a 2 week enrollment period beyond the law’s March 31 deadline.

Assuming arguendo that each of these—ending the telephony metadata collection and extending the signup period for two weeks—is good policy, as each appears to be, the President has placed two constitutional theories side by side for experimentation. According to one, Congress is entitled to a deliberative role in policymaking regardless of the troublesome delays and uncertain outcomes that deliberation entails. According to the second, the trumpeted “pen and phone strategy,” the imperatives of domestic policy trump constitutionalism.

The question, of course, is how the White House applied which strategy to which policy. After all, why not declare in the case of the NSA metadata program that security needs would come first, and in the case of Obamacare that constitutionalism, uncertain outcomes and all, would prevail?

A cynic might go so far as to declare that the White House was more committed to one policy than the other. The Affordable Care Act delays make utterly clear the President’s constitutional belief that he can unilaterally alter a program with which he disagrees. So does he or does he not disagree with the NSA collecting metadata?

A senior Administration official, asked why the Administration could not impose its desired changes administratively, explained the White House’s reasoning this way:

Look, we think that the change ought to be made to the program. The President believes the government should no longer collect and hold the bulk telephony metadata. He’s also got a responsibility as Commander-in-Chief to ensure that we maintain the capabilities of this program, and he wants to see it done in a way that also responds to the concerns that have been identified and to create a program and have a discussion about it, and have legislation that would promote confidence in our intelligence-gathering activities.

A bit indirect and convoluted, that. But the underlying concerns—to “have a discussion,” “respond to concerns” and “promote confidence”—would seem equally applicable to the changes the Administration made in the Affordable Care Act.

To be sure, there are specific legal reasons to bring the metadata program to Congress. Its authorization is expiring, so a reformed program requires new legislation. But the collection initially began without authorization, and there are obvious legal reasons to go to Congress in the case of the Affordable Care Act too, such as, to take the most recent case, the fact that the law—which the Executive is constitutionally bound to execute—imposes a hard deadline of March 31.

In either case, the legislative route is preferable. The NSA metadata collection, as appalling as it is, involves a balancing of individual rights against assertions—questionable as they may be—of the community’s safety. A consistent constitutionalist must not be too quick to jump at the opportunity to repeal an unconstitutional program by constitutionally questionable—which is to say unilaterally presidential—means.

But the same constitutionalist will notice in the juxtaposition of this latest Obamacare delay with the pursuit of NSA legislation a deeper problem. Historically, the worst imperial tinges of the presidency have generally been overseas affairs. The president moves troops like pieces on a game board, starts wars, tapes Angela Merkel’s phone conversations—all bad enough. But it has been restrained at home by the irksomeness of the legislative process.

These latest developments, by contrast, present the inverted portrait of a President purportedly restrained by constitutionalism on a matter of national security yet ruling by decree at home. Would that he were restrained in both realms. But at least the first bears a faint veneer of constitutional legitimacy touched up by historical practice. Moreover, while presidents have motives to find them and little difficulty in doing so, national security crises are rarer than the constant routine of domestic policymaking.

The second—the imperial presidency turned inward—invites new and troubling problems. Presidents vary far more on domestic policy than on national security policy, as the compatibility between the Bush and Obama terrorism policies show. Ruling by domestic decree means also ruling by withdrawing decrees, so what one President does today another can easily undo tomorrow. (Democrats would do well to question whether they want the same pen and phone wielded by a Republican who might, with comparable legitimacy, use them to suspend rather than extend the minimum wage.)

The alternation in policy and accompanying uncertainty—remember that Mitt Romney was going to exempt every state from Obamacare on his first day in office—will eventually be staggering. Moreover, the use of prosecutorial discretion to justify this supposed authority raises the troubling spectacle of Presidents deciding whom to pursue based on considerations of policy rather than justice.

There is an argument to be made, perhaps refuted by the NSA’s reaching into phone and email records, that domestic policy also touches more lives than national security policy, and that this version of the imperial presidency may therefore be more intrusive. If that is so, it may be the one development to be welcomed. The next sunrise that breaks over the nation may be the light bulb of Federalist 47—“[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny”—illuminating an awakened citizenry.

Reader Discussion

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on March 30, 2014 at 12:03:53 pm

"The next sunrise that breaks over the nation may be the light bulb of Federalist 47—“[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny”—illuminating an awakened citizenry."
Well put, Greg. Thank you.

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John E. Jenkins
on March 30, 2014 at 13:25:01 pm

The following is in no way intended to contend with any of the points raised or positions stated by Dr. Weiner. It may offer another perspective on the differentiation of the executive function with respect to PPACA and NSA as examples of legislative creations. The chief concern of the following, however, is to focus upon another and more crucial “separation” and use of constitutionally delineated powers.

For purposes of clarity, a brief prologue is in order.

Reference will be made to a “State.” A State is an embodiment of authority. Historically, the imposition of authority by physical or ideological force has created states. In subsequent periods embodiment of authority has occurred by acceptance or consent of sufficient of those subject to that authority to create states.

Mechanisms have been required for exercise of that authority, however established. Those mechanisms are governments. Those mechanisms have taken a wide variety of forms, including codifications of customs and constitutions. In the case of the United States, the there is a constitutionally delineated government, with constitutionally *delineated* functions and related powers (the exercise of which are “separated”). In the case of the several states and commonwealths the constitutional forms may also prescribe functions (such as education and certain social services).

In seeking certain objectives, such as the advancement of particular interests, particular social conditions, individual and group benefits and ameliorations of burdens, the American electorate has sought to transfer individual and civil (non-governmental) functions to performance through the constitutionally delineated functions of the mechanisms of the federal government.

The performance of those transferred functions have given rise to the need for authority (and means for its exercise) that do not fall within the constitutional delineations. As a result, because of the acceptance of the electorate of the embodiment of authority necessary for the objectives sought, the Federal Administrative State has been created and exists for provisions of functions such as Social Security, Medicare and Medicaid, Educational Programs, Child Welfare, Housing and an ever-growing extension of functions.

Like all states, the Federal Administrative State requires a mechanism for the exercise of the authority (accepted by the electorate) for purposes of the objectives desired by the electorate. In this case the Federal Administrative State uses the mechanisms of the constitutionally delineated functions of the mechanisms of the federal government. Those uses involve the powers as delineated in their separate forms by the Constitution.

As a result of acceptance and consent (for perceived or imagined advantages) to an additional embodiment of authority, the American electorate is subject to two ***separate forms of governance*** conducted by the same constitutionally designated entities. In the case of the Federal Administrative State, the executive office is essentially a manager of managers, and at the same time, often on the same matters, is the executive of the constitutional government who determines the uses to be made of the constitutionally delineated mechanisms of government.

In the case of NSA, the functions of that body are within the constitutionally delineated functions of the mechanisms of government. In the case of the PPACA, the functions are those of the Federal Administrative State, and the role of the executive office has other functions in addition to those under the Constitution.

The legislation by Congress specifies the particular authorities embodied in the Federal Administrative State. That legislation may also specify (or fail to specify limits on) the uses to be made of the constitutionally *delineated* functions of the mechanisms of the federal government. The defects of those specifications have no doubt been a major source of the dysfunctions of the Federal Administrative State, which are often referred to as “government failures.”

Due to conflicts in the various objectives sought by the American electorate, thus giving rise to the Federal Administrative State, which uses the mechanisms *and* resources of the federal government, the demands upon those resources (material and human) are reaching points of fragmentation. The fiscal fracture is already the most obvious and continuing failures will impair both necessary and redundant authority exercised through the mechanisms of the federal government.

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R Richard Schweitzer
on May 06, 2014 at 22:59:35 pm

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legal seperation

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