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 says it's Democrats' turn for a Tea Party movement House Republicans find silver lining in minority Alaskan becomes longest serving Republican in House history MORE (R-Ohio) opined that Obama’s “aggressive unilateralism” presented “a direct challenge to the constitutional balance of powers.” Sen. Marco RubioMarco Antonio RubioThe Hill's Morning Report — Washington readies for Mueller end game GOP eager to exploit Dem court-packing fight Rubio's pragmatic thinking on China MORE (R-Fla.) fumed that the president “believes somehow he’s become a monarch or an emperor.” Rep. Steve ScaliseStephen (Steve) Joseph ScaliseConservatives wage assault on Mueller report Meadows says Mueller's end proves 'no collusion' House Dem renews call for censuring Steve King 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 HoyerOvernight Defense: Top Marine warns border deployment could hurt readiness | McSally aims for sexual assault reforms in defense bill | House to vote on measure opposing transgender ban | New warning over F-35 sale to Turkey House Dems unveil measure to reject anti-Israel boycotts House to vote on measure opposing transgender military ban 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 Patricia D'Alesandro PelosiPelosi, Dems plot strategy after end of Mueller probe Coons after Russia probe: House Dems need to use power in 'focused and responsible way' Trump, Congress brace for Mueller findings 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 PaulHillicon Valley: Mueller delivers report, ending investigation | FEMA exposed info of 2.3M disaster survivors | Facebook asks judge to toss DC privacy lawsuit | Trump picks his first CTO | FCC settles lawsuit over net neutrality records Transparency advocate says government agencies face 'use it or lose it' spending Republicans need solutions on environment too MORE (R-Ky.) indicated he’s “disappointed” with the declaration. Sen. Lisa MurkowskiLisa Ann MurkowskiRed dresses displayed around American Indian museum to memorialize missing, murdered native women Juan Williams: Don't rule out impeaching Trump The 25 Republicans who defied Trump on emergency declaration 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 CollinsSenate GOP poised to go 'nuclear' on Trump picks Overnight Health Care: CDC pushes for expanding HIV testing, treatment | Dem group launches ads attacking Trump on Medicare, Medicaid cuts | Hospitals, insurers spar over surprise bills | O'Rourke under pressure from left on Medicare for all Dem group launches ads attacking Trump's 'hypocrisy on Medicare and Medicaid cuts' 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 CornynConservatives wage assault on Mueller report Senate GOP poised to go 'nuclear' on Trump picks GOP rep to introduce constitutional amendment to limit Supreme Court seats to 9 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 TrumpMueller report findings could be a 'good day' for Trump, Dem senator says Trump officials heading to China for trade talks next week Showdown looms over Mueller report 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 McConnellConservatives wage assault on Mueller report Overnight Energy: Interior reverses decision at heart of Zinke criminal probe | Dem divisions deepen over approach to climate change | GM to add 400 workers to build electric cars Trump: Green New Deal 'the most preposterous thing' and 'easy to beat' 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."