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 BoehnerFeehery: The next Republican wave is coming Rift widens between business groups and House GOP Juan Williams: Pelosi shows her power MORE (R-Ohio) opined that Obama’s “aggressive unilateralism” presented “a direct challenge to the constitutional balance of powers.” Sen. Marco RubioMarco Antonio RubioOvernight Defense & National Security — US tries to deter Russian invasion of Ukraine Senate eyes plan B amid defense bill standoff To counter China, the Senate must confirm US ambassadors MORE (R-Fla.) fumed that the president “believes somehow he’s become a monarch or an emperor.” Rep. Steve ScaliseStephen (Steve) Joseph ScaliseHouse sets up Senate shutdown showdown GOP beginning to jockey for post-election leadership slots The Memo: Omicron poses huge threat to Biden presidency 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.
The Republicans were right. Frustrated that Republican majorities in the House and Senate were blocking his legislative agenda, President ObamaBarack Hussein ObamaGOP infighting takes stupid to a whole new level Politics must accept the reality of multiracial America and disavow racial backlash To empower parents, reinvent schools MORE 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 HoyerOvernight Defense & National Security — US tries to deter Russian invasion of Ukraine Senate eyes plan B amid defense bill standoff On The Money — Congress races to keep the lights on 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.
Speaker Nancy PelosiNancy PelosiPhotos of the Week: Schumer, ASU protest and sea turtles Hospitals in underserved communities face huge cuts in reckless 'Build Back Better' plan GOP infighting takes stupid to a whole new level 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 PaulGOP anger with Fauci rises Congress's goal in December: Avoid shutdown and default Cotton swipes at Fauci: 'These bureaucrats think that they are the science' MORE (R-Ky.) indicated he’s “disappointed” with the declaration. Sen. Lisa MurkowskiLisa Ann MurkowskiCongress should reject H.R. 1619's dangerous anywhere, any place casino precedent Democratic frustration growing over stagnating voting rights bills Graham emerges as go-to ally for Biden's judicial picks 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 CollinsPhotos of the Week: Schumer, ASU protest and sea turtles Real relief from high gas prices The Hill's 12:30 Report: Biden to announce increased measures for omicron 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 CornynHouse passes bill to expedite financial disclosures from judges McConnell leaves GOP in dark on debt ceiling Congress's goal in December: Avoid shutdown and default 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 TrumpHillicon Valley — State Dept. employees targets of spyware Ohio Republican Party meeting ends abruptly over anti-DeWine protesters Jan. 6 panel faces new test as first witness pleads the Fifth 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 McConnellUS could default within weeks absent action on debt limit: analysis The Hill's Morning Report - Presented by Facebook - Congress avoids shutdown Senate dodges initial December crisis with last-minute deal 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."