Executive Overreach Is Not the Real Problem With American Politics

I understand that Charles Krauthammer must be under intense pressure to come up with new grounds for criticizing the Obama administration every week, but yesterday's effort was truly ridiculous. Let's go through point by point:

First, Krauthammer blasts the administration for a memo discussing ways that the Department of Homeland Security could go about normalizing the status of certain illegal immigrants without Congressional action. "Regardless of your feelings on the substance of the immigration issue," he fumes, "this is not how a constitutional democracy should operate. Administrators administer the law, they don't change it. That's the legislators' job."

Except, as Ryan McNeely points out, when we're talking about matters of national security. Then, it's apparently kosher for memos to be issued by the Justice Department stating that the Geneva Conventions are irrelevant in the War on Terror and that waterboarding and prolonged sleep deprivation are legitimate interrogation techniques that do not constitute torture.

Next, Krauthammer complains about the regulations that the Environmental Protection Agency seems prepared to place upon carbon emissions. Although Krauthammer means for this to serve as another example of extra-Congressional legislating by the Obama administration, he undermines his own argument by pointing out that a 2007 Supreme Court decision explicitly directed the EPA to take such a step in the absence of Congressional action on climate change. The authority for the agency to do so ultimately derives from the Clean Air Act, a piece of legislation that would seem to qualify as an acceptable product of the democratic process having been passed by both houses of Congress and signed by the president.

Krauthammer also attacks Obama for allegedly refusing to boost security along the U.S.-Mexico border unless Congressional Republicans show a willingness to compromise on a way to offer illegal immigrants who are already in America with a pathway to citizenship. No matter that Obama has already sent over a thousand National Guard troops to the border and yet appears no closer to a deal on comprehensive immigration reform; according to Krauthammer, he is subverting the public good in favor of scoring a political victory. "[B]order enforcement is not something to be manipulated in return for legislative favors," he opines. "It is, as the administration vociferously argued in court in the Arizona case, the federal executive's constitutional responsibility. Its job is to faithfully execute the laws. Non-execution is a dereliction of duty." It's amusing to witness Krauthammer making an argument like this since I presume he is a member of the camp that would like to see Republicans defund the Affordable Care Act should they retake Congress in 2010 or 2012. Wouldn't that also be a failure to execute the law? Yet even if Obama were guilty of politicizing his administration's enforcement of the law, it would hardly be the first time that a president had committed such a sin: note the Bush administration's gutting of the Justice Department's civil rights division and of the epic incompetence and malfeasance of its environmental regulatory agencies. Do those cases not represent a broad failure to execute the law in an appropriate manner, or does Krauthammer simply care more about enforcing laws related to halting illegal immigration rather than those meant to guard against racial discrimination or pollution?

Finally, Krauthammer sums up his argument by noting that the traditional check on federal expansion has been the fact that legislation must first be approved by both houses of Congress in order to take effect. This allows the elected representatives of the people to decide what constitutes an appropriate amount of power to cede to the federal government. As Krauthammer's examples of immigration reform and environmental protection illustrate, the federal government is now assuming authority through other means. But this doesn't signify an authoritarian power-grab so much as it signifies a legislative system that is hopelessly antiquated and ineffective. As it stands today, President Obama would not have very much trouble passing comprehensive immigration reform, cap-and-trade legislation, or any other major liberal legislative initiative if only both houses of Congress operated, as they traditionally have, under majoritarian rules. After all, the American people granted Obama's party overwhelming majorities in both chambers during the 2008 election. Yet, because Republicans have twisted arcane Senate rules so that the upper chamber is now governed by super-majoritarian rules, the president has had to go outside the traditional channels of power in order to enact his agenda. Krauthammer is right to suggest that our political system is not presently functioning in a way that ensures the optimal implementation of policy, but he is wrong to lay the blame for that upon the executive branch. Rather, the blame rests with the legislature, specifically the Senate.