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The Powers and Prerogatives of Presidents

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A major problem with the Obama presidency has been the president’s notion that if he doesn’t get what he wants one way (a legislative change or an appointee, say) he is free, as the president, to simply do it anyway. Tom Perez’ initial appointment as Chair of the National Labor Relations Board (NLRB) was made, despite resistance in the Senate, during a period when President Obama decided Congress was in recess (a presidential action eventually overturned by the Supreme Court). Many of Perez’ rulings as chair of the NLRB thereafter stem from that period (although he was eventually confirmed, thanks to then Senate Majority Leader Harry Reid’s decision to blow up of filibuster rule which allowed confirmation by a simple majority vote, which is why he remains in charge there today).

Like other Obama agencies and appointees, Perez issued rules or remake existing rules in ways that were more congenial to his and the president’s policy preferences, regardless of their conformance with congressional intent or law. Many on the left have argued that that’s okay though because President Obama is entitled to do what he likes unless a court rules against him. That is, absent an adverse court decision, the president’s actions are prima facie lawful.

That’s a peculiar standard to say the least. When we get a speeding ticket, can we argue with the judge that we didn’t deserve it and were entitled to speed because no court had ruled at that point as to whether our driving violated the law at that time and in that place. We may be innocent until proven guilty in a court of law, but does that mean we can do anything we like, until then, on the street? Can we commit murder or mayhem with impunity because we have not, as yet, been found guilty of having done so?

Laws are rules we follow in general and violating many of them will be patently obvious beforehand although some laws, including those writ into the Constitution, may be ambiguous and require court rulings to establish the actual boundaries that distinguish following them from violating them. Presidential actions are certainly more akin to the latter than the former in many cases, but does that mean a president has no standards at all, once in office, save what a court rules on after the fact?

If we expect our presidents to refrain from theft and murder in their day to day behaviors, don’t we also expect them to refrain from breaking Constitutional norms which are broadly recognized as such in our society? Don’t we also expect them to act, in their role as chief executive, within the confines of the powers allocated to their office by the Constitution?

How are we to know what those confines are when there are questions and ambiguities, cases at the edges where courts have yet to rule? We certainly recognize that there are such ambiguities. But ought our presidents to follow a policy of pushing the envelope, trying whatever new thing seems good to them if they believe it advances the policy outcomes they desire, that they should be free to just see how far they can go with an action until some court pushes back?

And when courts do push back, although they often take lengthy periods of time to do so (time during which presidential actions can have enormous consequences), ought our presidents to just hang tough and keep on appealing adverse rulings or try other maneuvers to get round some court-generated obstacle as this president’s Justice Department has so often done?

Isn’t there something deeply wrong with a presidency where the occupant of that office adopts a standard of trying to get away with as much as he can vis a vis existing, recognized standards of presidential power? Are there not recognized norms which historically constrain our presidents, norms based in the Constitution’s text, itself, which are traditionally interpreted as constraining presidents in certain ways and which we all recognize as such because we have seen that they are not breached by prior occupants of the Oval Office?

Isn’t there something wrong when a president adopts a policy of ignoring these kinds of norms because he has “a pen and a phone” and considers himself free to act as he wishes so long as he and his advisors think they can finesse challenges to their actions in court? If the Constitution sets out the limits of our top officials’ powers, are we well served when those officials decide to see just how far they can go on their own, how much they can get away with, how much power they can squeeze out of their office by operating along the fringes of the Constitutional provisions which set limits to the powers of our three branches of government?

Are President Obama’s defenders on the left really justified in believing that a president can do anything as long as the courts don’t halt or reject it? This morning’s Wall Street Journal editorial page offers yet another example of the courts halting Obama administration overreach, this time with a federal judge overturning another rule by the Perez-led NLRB writing, in part, that:

“Judge Mazzant—an Obama appointee—noted that the ‘significant increase to the salary level creates essentially a de facto salary-only test’ that exceeds Labor’s ‘delegated authority and ignores Congress’s intent by raising the minimum salary level such that it supplants the duties test.’ He called the rule ‘directly in conflict with Congress’s intent.’ ”

Many on the left will continue to argue that President Obama’s actions are just fine as long as the courts don’t halt them — and, when they do, well c’est la vie. Nothing ventured, nothing gained they seem to be saying. Whatever the president does manage to make stick, thanks to court deference, will justify his effort to expand presidential powers beyond the level previous presidents have enjoyed in ways that serve the agenda he represents. But how will they feel about all this when the president’s name is Trump rather than Obama? Will they still rejoice at Obama’s unprecedented expansion, in peacetime, of the executive branch’s power then?

About Stuart W. Mirsky

Stuart W. Mirsky, a former New York City official who last served as Assistant Commissioner for Operations in the New York City Department of Health and Mental Hygiene before retiring in 2002, wrote a column, "The Rockaway Irregular," for The Wave, a south Queens based weekly, for more than a decade (until Hurricane Sandy changed the equation). He is an original founder of the Rockaway Republicans, one of the most active Republican groups in southern Queens, and author of a number of books, including The King of Vinland's Saga, an historical novel of the Norse in 11th century North America, A Raft on the River, a memoir of Holocaust survival, and Choice and Action, a work of contemporary philosophy addressing the implications of relativism and nihilism for our moral beliefs.

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