Using the Emoluments Clause to sue the President reinforces congressional weakness, and there is a better way.
In his state of the union and again in his recent interview with Politico, President Obama expressed sorrow that he has not been able to end political animosities. As he put it in the interview, “a singular regret for me is the fact that our body politic has become more polarized, the language, the spirit has become meaner than when I came in.”
Obama blames different factors from the media to gerrymandering for our angry divisions. But Obama himself is in no small measure responsible for polarization. His reliance on executive action, most egregiously his order on immigration, is a primary cause. Unsupported by any express delegation from Congress, this extraordinary act is enormously controversial. It seeks to permit five million people who have come to this country illegally not only to stay but to work.
Legislation on divisive issues is much less likely to lead to polarization than executive fiat. The reasons are rooted in the nature of our political structure. Legislation requires ideological compromise, because the median members of Congress are closer to the center of the political spectrum than the President, who does not represent the median voter. Instead, he tends to reflect the median voter of his party, because he is selected largely by members of that party through the primary voters and super delegates. The Senate filibuster also moves legislation to the center.
Of course, Obama argues that he is acting because Congress is not. But gridlock is a key feature of our system that requires the compromise. And it is simply not the case that inaction by a President is as likely to lead to polarization as action, because it is actions that upset citizens most.
Tit for a tat is an iron rule of politics. Executive fiat by the President of one party will likely to lead to more such actions by the President of the opposite party when that party takes power. Indeed, Obama’s executive overreaching has helped no candidate more than Donald Trump. Many Republican voters have concluded that they need a man of action who will not feel constrained by legal niceties or previous norms of politics to fight for them. Following Obama’s example, Trump might lower tax rates by declining to collect certain taxes. Fight fire with conflagration.
Sadly, the enthusiasm for executive fiat is not limited to Obama and Trump. Even some scholars have caught the fever. Adrian Vermeule has approvingly imagined a world where there is no Congress, only an elected executive who rules essentially by decree. That would be a dreadful polity, increasing polarization and anger as well as leading to sharp and destabilizing shifts in policy. Even the excesses of parliamentary democracy—a system without our separation of powers– are limited by the need to retain marginal seats or assemble a coalition. Rule by alternating men on horseback will stampede citizens to disorder and despair.