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 BoehnerBottom line Bottom line Pelosi, Trump slide further into the muck MORE (R-Ohio) opined that Obama’s “aggressive unilateralism” presented “a direct challenge to the constitutional balance of powers.” Sen. Marco RubioMarco Antonio RubioGOP senators dodge on treatment of White House protesters Murkowski: Treatment of White House protesters 'not the America I know' Rubio: Protesters outside White House 'deliberately stayed to trigger police action' MORE (R-Fla.) fumed that the president “believes somehow he’s become a monarch or an emperor.” Rep. Steve ScaliseStephen (Steve) Joseph ScaliseTop GOP lawmakers invite Blue Dogs to meet with China Task Force Top GOP lawmakers invite Blue Dogs to meet with China Task Force over coronavirus probe House pays tribute to late Congressman Sam Johnson on the floor 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 HoyerCalls for police reform sparks divisions in Congress Hoyer wins Maryland House primary Hoyer: Gassing of protestors 'worthy' of Trump censure 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 congratulates Steve King challenger on GOP primary win The Hill's Morning Report - Protesters' defiance met with calls to listen Calls for police reform sparks divisions in Congress 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 PaulDemocratic senator to offer amendment halting 'military weaponry' given to police Second senator tests positive for coronavirus antibodies Senate Democrats pump brakes on new stimulus checks MORE (R-Ky.) indicated he’s “disappointed” with the declaration. Sen. Lisa MurkowskiLisa Ann MurkowskiCalls for police reform sparks divisions in Congress GOP senators dodge on treatment of White House protesters GOP senator: Trump used 'the Word of God as a political prop' 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 CollinsTrump pushes back against GOP senators' criticism of dispersal of protesters in Lafayette Square: 'You got it wrong' Trump, Biden battle to shape opinion on scenes of unrest GOP senators dodge on treatment of White House protesters 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 CornynCalls for police reform sparks divisions in Congress GOP senators dodge on treatment of White House protesters Houston police chief responds to Trump advice on protests: 'Keep your mouth shut' 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 TrumpTrump says inviting Russia to G7 'a question of common sense' Pentagon chief does not support invoking Insurrection Act Dershowitz: Does President Trump have power to declare martial law? 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 McConnellTrump congratulates Steve King challenger on GOP primary win The Hill's Morning Report - Protesters' defiance met with calls to listen Republicans turning against new round of ,200 rebate checks 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."