Opinion | White House

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

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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 Boehner (R-Ohio) opined that Obama's "aggressive unilateralism" presented "a direct challenge to the constitutional balance of powers." Sen. Marco Rubio (R-Fla.) fumed that the president "believes somehow he's become a monarch or an emperor." Rep. Steve Scalise (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 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 Hoyer (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 Pelosi 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 Paul (R-Ky.) indicated he's "disappointed" with the declaration. Sen. Lisa Murkowski (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 Collins (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 Cornyn (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 Trump. 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 McConnell'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."

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