In what can only be seen as a checkmate to the Republican victory in the mid-term elections, President Barack Obama’s swift use of executive action to lay the foundation for a future, and hoped for, Congressional action to pass a comprehensive bill to handle the 11 million undocumented workers in the US last week, sent the media, and Speaker of the House John Boehner into a tailspin.
While there were naysayers, Boehner at the lead,who accused Obama of not only overreaching his constitutional powers, but also of acting like the King, and Emperor that he he denied he was in earlier statements.
Many supporters have argued, and even wrung their hands in consternation, if there was ever going to be a viable immigration bill that lived outside of a Congressional committee, but it was clear that the time that had come for some decisive action; others, as reported by ABC’s Andrea Mitchell, who reported that many Democrats had been trying to reach bipartisan efforts behind the scenes, now felt that all of that work was lost. And, others see it as a first and necessary step towards the moral core of the nation, especially when it comes to preserving families, who faced the deportation of parents.
Of course, the familiar Greek Chorus or Boehner, Ted Cruz and Mitch McConnell keened, or in Cruz’s case, vowed to end the lawlessness that he has accused the president of, and to also to dismantle the often-maligned Affordable Care Act, brick by brick.
Those plans now merged with the shock and horror of the announcement, and the subsequent potboiler headlines, that blared, “Borders are open, come on in,” now take a real backseat to the mud-slinging, name calling and character assassination that has not been seen since the presidential election of 1801 between Thomas Jefferson and John Adams.
Lost in the rhetoric is of course, the nature of executive privilege, a term that many have come to embrace, but perhaps not understand, how it evolved and where the term came from. So, let’s take a look in the rear mirror of history to see where the term came from, but first some American History 101. The Founding Fathers felt that separation of powers lay at the root of their newly formed government, a strong departure from the inherited logic of the time that declared that good government required the unification of authority, solely invested in an individual, and usually a King, or even Queen.
Those summery days in a sweltering Philadelphia in 1787, during the Constitutional Convention, perhaps the attendees had James Madison in mind, and his Federalist papers, who noted in the 51st, that “a necessary constitution” requires “those who administer each department, the necessary constitutional means, personal motives to resist encroachment of the others,” as he laid out his system of checks and balances.”
What any American schoolchild can tell you is that this resulted in the legislative, judicial, and executive branches of the government; with the historical question of how well, we as a nation have managed this.
Obama is not the first president to face these charges, Lincoln called for a militia after the opening shots of the Civil War in April, 1861, and when Union troops were assaulted in Baltimore on their way to Washington he “suspended habeas corpus along the Philadelphia to Washington line, the most dramatic of all his actions to that point. Besides the political problem connected with suspending one of the most hallowed concepts in Anglo-American law, Lincoln faced the legal question of whether he had the authority to do this.”
So, history has repeated itself once again, and Obama like Lincoln has gone his own way, Lincoln it should be remembered ignored Chief Justice Roger Taney who ruled in Congress’ favor. So, also shall it seem that Obama in the face of mounted criticism, and republican threats of retribution, since they cannot defund the U.S. Citizenship and Immigration Services, an agency within the Department of Homeland Security that is “entirely self-funded by application fees.”
Justice Brandeis might have said it better when he stated that the goal was “not to promote efficiency but to preclude the exercise of arbitrary power,” and that seems closest to what Boehner is accusing the president of.
While most of the abuse that we have seen in the last 40 years has come from the Watergate era, and President Nixon, the term first emerged in the 1950s when the Eisenhower administration refused in 44 instances from June of 1953 to June of 1960 to deny access of papers, requisitioned by Congress.
This reached its apex when William P. Rogers, the new attorney general, in 1958 opposed supplying even legally subpoenaed powers to federal requests, and who as historian Arthur J. Schlesinger, Jr. noted in his work, “The Imperial Presidency”, that the concept soon “acquired the patina of ancient and hallowed doctrine, and furthermore in that brief decade, was seen as a ‘sacred constitutional principle.”
But, the solutions on the Republican side can only spoil their victory: government shutdown, anger and alienate the electorate even more. Impeachment: Bill Clinton survived one, and came out even stronger in the polls as many American people gave him waves of sympathy.
The solution might be, as the president said, to pass a bill, maybe that one in the Senate that even had bi-partisan support, and one that might just work. Let the games begin.