PETERSON: Trying to nudge the Constitution out of place

Are Americans obsessed with founding documents?

By Paul E. Peterson

Thursday, January 10, 2013

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  Illustration Bismark Helmet by Greg Groesch for The Washington Times more >

Will 2013 come to be known as the year of presidential decree? The year the president ignored Congress, changed the rules of government, and put into place whatever policies he saw fit? The year the United States ended what has been called its “obsession” with its Constitution?

During his first term, President Obama issued executive orders in lieu of laws passed by Congress, signed executive agreements with foreign countries in lieu of treaties ratified by the Senate, and formulated burdensome regulations with little legislative justification. As the administration begins its second term, it is expressing extreme frustration at the constitutional powers held by the House of Representatives. To counter, the administration is threatening to catapult presidential power to levels attained only by such Machiavellian politicians as Otto von Bismarck, who consolidated executive power vis-a-vis the German parliament and local fiefdoms in the late 19th century.

The groundwork for expanded constitutional authority was laid in a recent op-ed piece by Michael Seidman in the New York Times, who argues that “our obsession with our Constitution has saddled us with a dysfunctional political system.” The president should “disobey” the Constitution if he thinks it is sensible to do so, the Georgetown law professor writes. Congress should be required to defend its power over the purse “on policy grounds,” not on some abstruse constitutional provision that says only Congress has the power to tax and spend. “Much constitutional language is broad enough to encompass an almost infinitely wide range of positions,” he says.

If a call for constitutional disobedience is openly advocated in the nation’s leading liberal newspaper, one must assume similar arguments, phrased more carefully, are being elaborated by skilled attorneys inside the White House.

In the year ahead, we can anticipate several things. First, the president will refuse to cut spending by the amount needed to win congressional support for the lifting of the legislatively established debt ceiling. He will instead simply ignore the debt ceiling, claiming that subsequent appropriations have tacitly raised the ceiling automatically. As the president has already said this year: “While I will negotiate over many things, I will not have another debate with this Congress over whether or not they should pay the bills that they’ve already racked up through the laws they passed.” That sentence is unambiguous. The president promises to ignore the debt ceiling so he can have additional leverage in the upcoming negotiations over spending levels.

Never let a law stand in the way of the pursuit of power.

Second, contrary to past practice, Democrats will by a majority vote restrict or eliminate the 60 percent majority rule necessary to limit debate in the Senate, thereby consolidating tight majority control of the upper house of Congress. That idea is on the table already.

Ancient laws will be modernized with new interpretations. The Clean Air Act, a law originally designed to control ground-level pollutants, is already being interpreted as requiring the imposition of tight restrictions on fossil fuels on the absurd grounds that carbon dioxide is a pollutant. With equal interpretative imagination, the Endangered Species Act will be interpreted as requiring the shutdown of intercontinental pipelines.

The president will abandon any effort to secure reauthorization of No Child Left Behind. Instead, he will vacate that law by extending the practice begun in 2012 of allowing most, perhaps all, states to opt out of its requirements — provided they accept alternative rules written by the Department of Education on its own hook. Hardly a whimper was heard from the opposition party on Capitol Hill when this practice began last year, and the Republican presidential candidate acted as if the topic was toxic. There is no reason for the president to stop now.

Major changes in immigration law will be enacted by presidential and departmental decrees, extending the practice begun in the midst of the 2012 presidential campaign. Since the president’s authority was not challenged in any significant way even at the height of a re-election campaign, the president will expand on what has been begun.

If Congress fails to enact rigorous restrictions on the possession of guns, the executive branch will nonetheless impose them. According to recent news reports, Attorney General Eric H. Holder Jr. is advocating an executive order that would tighten controls over gun sales and state and local enforcement.

Clearly, the president has shown a willingness to interpret his constitutional authority and the laws of the land about as freely as Bismarck did 150 years ago. The German chancellor got away with his power grab for many years, though by so doing he laid the groundwork for 20th century political disasters.

Unless the public comes to understand the importance of abiding by constitutional practice and well-established political protocols that have been essential for the protection of minority rights and the rule of law, Mr. Obama will be no less successful. We can only speculate on the long-term consequences.

Paul E. Peterson is the Shattuck professor of government at Harvard University and a senior fellow at the Hoover Institution.