On unilateral executive action, Mitch McConnell was right — in 2014

On unilateral executive action, Mitch McConnell was right — in 2014
© Stefani Reynolds

On Nov. 20, 2014, Sen. Mitch McConnell (R-Ky.) blasted President Barack Obama for excessive and constitutionally dubious use of executive orders and memoranda. “Imposing his will unilaterally may seem tempting, it may serve him politically in the short run,” the Majority Leader declared, “but he knows it will make an already broken system even more broken… and he knows this is not how democracy works.”

McConnell’s Republican colleagues agreed. House Speaker John BoehnerJohn Andrew BoehnerBoehner won't say whether he'd back Biden over Trump The Hill's Morning Report - Trump seizes House impeachment vote to rally GOP Amash's critics miss the fact that partisanship is the enemy of compromise MORE (R-Ohio) opined that Obama’s “aggressive unilateralism” presented “a direct challenge to the constitutional balance of powers.” Sen. Marco RubioMarco Antonio RubioUS-Saudi Arabia policy needs a dose of 'realpolitik' Media cried wolf: Calling every Republican a racist lost its bite Rubio criticizes reporters, Democrat for racism accusations against McCain MORE (R-Fla.) fumed that the president “believes somehow he’s become a monarch or an emperor.” Rep. Steve ScaliseStephen (Steve) Joseph ScaliseThe Memo: Fears of violence grow amid Trump race storm Democrats call for increased security after 'send her back' chants Democratic strategist on Trump tweets: 'He's feeding this fear and hate' MORE (R-La.), chairman of the Republican Study Committee, condemned Obama’s fantasy that he can “just use his pen to write laws.”  In the United States, Scalise added, “the president has to work with Congress to get things done.” To bypass Congress, many Republicans noted, future presidents would cite the legacy of Obama.

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The Republicans were right. Frustrated that Republican majorities in the House and Senate were blocking his legislative agenda, President Obama promised “audacious” executive action in his 2014 State of the Union Address. “Wherever and whenever possible,” he declared, he would make and implement policies by acting “without legislation.”

And he did. Executive Order 13658 raised minimum wages for thousands of federal contract workers. Through unilateral executive action, Obama committed the United States to the provisions of the Paris Climate Accord. And, of course, Obama’s DACA program shielded from deportation 3.6 million individuals who had been brought to the United States, illegally, as minors, provided them legal status, and access to Social Security and other federal government benefits.

Then private citizen Donald Trump called Obama’s DACA executive order “a very, very dangerous thing that should be overridden by the Supreme Court.”

Virtually without exception, congressional Democrats welcomed Obama’s willingness to circumvent Republican opposition to his policy goals. “He’s not going to be constrained by the gridlock, inaction and negativity of the Congress of the United States, said Steny HoyerSteny Hamilton HoyerThe House Democrats who voted to kill impeachment effort Overnight Defense: House votes to block Trump arms sales to Saudis, setting up likely veto | US officially kicks Turkey out of F-35 program | Pentagon sending 2,100 more troops to border House votes to block Trump's Saudi arms sale MORE (D-Md.), House Minority Whip.

A few liberals, it is worth noting, sounded the alarm bells. Obama’s executive order regulating individual power plants led Harvard Law Professor Laurence Tribe, for example, to complain that “Burning the Constitution should not become part of our national energy policy.”

With President Donald Trump’s declaration of a national emergency (by all accounts, a more extreme step than an executive order) to address the “crisis” on the southern border by building a wall, the (partisan) worm has now turned.

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Speaker Nancy PelosiNancy PelosiTrump telling aides to look at potential spending cuts if he wins reelection: report Budget talks between White House, Pelosi spill into weekend Trump says he won't watch Mueller testimony MORE and her fellow Democrats have branded the president’s action “lawless” and vowed to challenge it in the halls of Congress and the courts. And Republicans are now playing defense. Sen. McConnell, members of the Freedom Caucus, several U.S. senators, and Sean Hannity have announced support for the declaration.

This time, however, some Republicans have expressed reservations. “We have a crisis on our southern border,” Sen. Rubio has stated, “but no crisis justifies violating the Constitution.” Sen. Rand PaulRandal (Rand) Howard PaulUS-Saudi Arabia policy needs a dose of 'realpolitik' McConnell challenger faces tougher path after rocky launch Overnight Defense: Iran seizes British tanker in latest escalation | US, UK to discuss situation | Trump says 'no doubt' US downed Iranian drone after Tehran's denials | Pentagon's No. 2 policy official to leave | Lawmakers worry about Defense vacancies MORE (R-Ky.) indicated he’s “disappointed” with the declaration. Sen. Lisa MurkowskiLisa Ann MurkowskiPoll: McConnell is most unpopular senator Overnight Defense: Highlights from Defense pick's confirmation hearing | Esper spars with Warren over ethics | Sidesteps questions on Mattis vs. Trump | Trump says he won't sell F-35s to Turkey Epstein charges show Congress must act to protect children from abuse MORE (R-Alaska) does not think “this matter” should be deemed a national emergency. Noting that national emergencies were intended for national disasters and acts of terror, Sen. Susan CollinsSusan Margaret CollinsPoll: McConnell is most unpopular senator Hillicon Valley: Lawmakers struggle to understand Facebook's Libra project | EU hits Amazon with antitrust probe | New cybersecurity concerns over census | Robocall, election security bills head to House floor | Privacy questions over FaceApp Trump angry more Republicans haven't defended his tweets: report MORE (R-Maine) opposes the action because it undermines the role of Congress and “sets a bad precedent for future Presidents.” Although he appears now to be waffling, Sen. John CornynJohn CornynGOP wants commitment that Trump will sign budget deal Hillicon Valley: Trump seeks review of Pentagon cloud-computing contract | FTC weighs updating kids' internet privacy rules | Schumer calls for FaceApp probe | Report says states need more money to secure elections Senators introduce legislation to boost cyber defense training in high school MORE (R-Texas) seemed to agree about a week ago.

If, as expected, the House of Representatives votes to rescind Trump’s declaration, these senators may well be put on the spot.

The declaration may be rescinded by a joint resolution of Congress. If passed, that resolution is certain to be vetoed by President TrumpDonald John TrumpUS-Saudi Arabia policy needs a dose of 'realpolitik' Trump talks to Swedish leader about rapper A$AP Rocky, offers to vouch for his bail Matt Gaetz ahead of Mueller hearing: 'We are going to reelect the president' MORE. And all the while, the “national emergency” will wend its way through the courts, perhaps putting Chief Justice John Roberts on the spot.

As events unfold, however, one can only hope that the politicians and the public, Democrats and Republicans, conservatives and liberals, will demand urgent action to address Mitch McConnellAddison (Mitch) Mitchell McConnellMcConnell challenger faces tougher path after rocky launch Funding a strong defense of our nation's democratic process can't wait The Hill's Morning Report: Trump walks back from 'send her back' chants MORE’s prescient and persuasive concern about executive overreach: Imposing their will unilaterally may be tempting to presidents — it may serve them politically in the short run — but “It will make an already broken system even more broken,” and it “is not how democracy works.”

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University, and the co-author (with Stuart Blumin) of "Rude Republic: Americans and Their Politics in the Nineteenth Century."