In the latest episodes of Netflix’s political drama "House of Cards" (a show I cannot recommend), fictitious president of the United States Francis Underwood, desperate to change the narrative of his scandal plagued presidency, bypasses Congress to create his own jobs program in Washington, D.C. Ignoring the plain statutory language that enables FEMA to provide emergency relief in case of natural disasters, Underwood raids FEMA funds by declaring a “jobs emergency” and uses that money to fund his jobs program.
When congressional Republicans and Democrats join forces to crush Underwood’s presidential overreach, jealously guarding congressional power, I found myself wishing that such leaders, as deeply flawed and self-serving as they are portrayed, were jealously guarding legislative authority in our real-life Congress.
President Obama has consolidated more power in the executive branch than any other U.S. president. He has done so by pushing the extremes of statutory interpretation to justify unprecedented regulatory overreach. Republicans on their own have been powerless to stop him, unable to muster veto proof majorities; Democrats have been silent, allowing Obama to do as he pleases. To put it simply, the Obama administration is rewriting the rules that govern our country with the full consent of Congressional Democrats.
In the last couple of years, Obama has unilaterally declared amnesty for millions of illegal immigrants, redefined “navigable waters” through the Army Corps of Engineers, cooked up crippling environmental regulations through the EPA, seized control of the internet through net neutrality regulations, and nationalized government subsidized student loan programs. He is now considering executive orders to unilaterally raise $100 billion in new taxes, to grant retroactive “earned income tax credits” to illegal immigrants regardless of whether or not they have ever paid taxes, and to ban the sale of ammunition for certain firearms. These are just a few examples of Obama’s systematic, deliberate efforts to both write and execute the laws of the United States. He has exploited congressional dysfunction to transform the U.S. presidency into an Eemperorship that even Julius Caesar himself might have been envious of, albeit with term limits.
The foundational Constitutional principle of a balance of legislative, executive and judicial powers is, and has been, under full assault by this president. Congressional Democrats have been all too willing allies, facilitating Obama’s power grabs by refusing to insist that the president go though the regular give and take of the legislative process to advance his agenda. Instead, through their silence, they have allowed all of the “take” with none of the “give”. It is unlikely, when the tables are eventually turned and a Republican is in the White House, that congressional Republicans will act any differently. Obama has crossed the Constitutional rubicon for himself and every future U.S. president.
So it is to the Supreme Court that we must look for a rebalancing of Constitutional power. This week, the Supreme Court will hear oral arguments in King vs. Burwell, a legal challenge to Obamacare’s health-care subsidies paid through the federally established health-care exchange. Without going into the specifics of the case, the Supreme Court’s ruling will largely hinge on whether or not the Court will defer to the plain language of the Obamacare statute, which states that healthcare subsidies are to be paid through state-based exchanges. A narrow interpretation of the statute in this instance, and in the other legal challenges to this president’s executive overreaches, would force Obama to actually work with, rather than bypass, Congress to advance his agenda.
I hope the Supreme Court will take every opportunity to rein in this administration’s extra-legal power grabs. Our Constitutional form of government itself hangs in the balance.
Dan Liljenquist is a former state senator and former U.S. Senate candidate.