Since 2010, when the Democrats lost their majority in the House and their filibuster-proof majority in the Senate, President Obama’s ability to pursue legislative changes has ground to a halt. With the Republicans taking control of the Senate in January, we can expect to see many more headlines blaring that the “do-nothing Congress” has passed the fewest laws in decades. But that gridlock hasn’t halted the president’s plans to implement his policies. In fact, he claims it has strengthened his power to act alone — if Congress won’t act, he can, and will.
President Obama routinely cites Congress’s obstinacy regarding his agenda as justification for a series of executive actions that suspend, waive, and even rewrite statutes. His frustration is understandable, but his response is not justifiable. Brazenly maneuvering around the lawmaking function of Congress is an affront to the constitutional order.
There is nothing new about congressional gridlock. It is perhaps worse than ever today, but partisan impasses are not novel. There is also nothing new about presidents’ creatively reinterpreting the law in order to justify executive policies. What is new is the relationship between these two factors — invoking gridlock as a justification for redefining executive authority. This disruptive constitutional philosophy poses a threat to our separation of powers. It establishes a precedent for this and future presidents to permanently blur the lines between the executive and legislative prerogatives.
Generally, when a president suffers a congressional setback, he has two choices: advance a more moderate compromise proposal that can get past the political roadblock, or table the issue. Yet, since 2010, the president has chosen a third path: act as if Congress supported him, and proceed with his agenda unilaterally. He has done this with his unconstitutional recess appointments to the National Labor Relations Board, his unilateral modifications to the Affordable Care Act, his unprecedented expansion of immigration authority via Deferred Action for Childhood Arrivals, and many other actions.