The Imperial Obama Presidency and the Demise of Checks and Balances – Guest Essayist: U.S. Senator Ted Cruz
Under President Obama, America has witnessed an unprecedented expansion of presidential power. This is not merely the observation of political opponents. Liberal law professor Jonathan Turley—who voted for President Obama—has reached the same conclusion: “We are seeing the emergence of a different model of government in our country—a model long ago rejected by the Framers.” “What’s emerging,” according to Professor Turley, “is an imperial presidency, an über-presidency . . . where the President can act unilaterally.”
President Obama frequently claims power to act when Congress will not, as though his powers are somehow enlarged the moment Congress refuses to address his priorities. “I take executive action,” said the President, “only when we have a serious problem, a serious issue, and Congress chooses to do nothing.” He repeatedly threatens that “if Congress won’t act, I will.” Frustrated by Congress’s refusal to enact his agenda or by laws that he simply finds to be inconvenient, President Obama has too often resorted to unilateral executive action to override acts of Congress or to implement policies that he was unable to enact through the proper constitutional process. Many examples are documented in a series of reports I authored last Congress and in a recent law review article titled “The Obama Administration’s Unprecedented Lawlessness” in the Harvard Journal of Law and Public Policy.
At any other time in our history, it would have gone without saying that this is not how our system of government works. Article I of the Constitution vests Congress, not the President, with the sole power to legislate. Article II, by contrast, charges the President with the responsibility to “take Care” that the laws enacted by Congress be “faithfully executed.” Given this division of power, the President cannot act until Congress does. But President Obama sees congressional inaction, not as a limitation on his power to act, but as a license to act. This is the logic of Caesar, not the logic of a president in a constitutional republic.
The Framers built checks and balances into the Constitution to prevent the President or any other branch of government from consolidating and wielding all power. “The accumulation of all powers . . . in the same hands,” wrote James Madison in The Federalist No. 47, is “the very definition of tyranny.” But these checks and balances have failed to stop President Obama’s lawlessness.
The reason for this failure lies in Congress’s refusal to fulfill its constitutional role. For far too many members of Congress, partisan loyalty to the President and ideological commitment to his goals outweigh any interest in asserting their own institutional rights and prerogatives as the people’s representatives. They are all too willing to hand power over to the President.
This is not what the Framers envisioned. According to Madison in The Federalist No. 51, “the great security against a gradual concentration” of power in one branch of government lies in giving the members of each branch “the necessary constitutional means, and personal motives, to resist encroachments of the others.” “Ambition must be made to counteract ambition,” he said. But Madison did not expect that members of Congress would be motivated less by personal motives and ambition than by partisan loyalty and ideology. So long as the latter trump the former, the Constitution’s checks and balances cannot work as Madison had hoped. A Congress populated with enough partisans of the President—not to mention those who simply lack commitment to defend their constitutionally appointed role—will not stand up to the President, even as he takes their power away.
In the absence of a functioning system of checks and balances, the only way to put a stop to presidential lawlessness is for the American people to rise up and demand it. Despite his faith in the “auxiliary precautions” of checks and balances, even Madison understood that the people are ultimately “the primary control on the government.” That means that the people must hold their representatives accountable when they fail to uphold their oaths and perform their constitutional duties.
President Obama’s reign will soon come to an end. To ensure that the imperial excesses of the Obama presidency are never repeated, the people must elect constitutionalists—those who will respect and adhere to the constitutional design above all else, including party loyalty and ideology. The future of our constitutional order, which secures our liberty, depends on it.
In the twilight of the Roman republic, Cicero wrote the following: “The Republic, when it was handed down to us, was like a beautiful painting, whose colors were already fading with age. Our own time has not only neglected to freshen it by renewing its original colors, but has not even gone to the trouble of preserving its design and portrayal of figures.” Let the same not be said of us.
The Honorable Ted Cruz is the 34th Senator from Texas, elected in 2012. He serves on the Senate Judiciary Committee’s Subcommittee on the Constitution. He is the former Solicitor General of Texas, and a former Adjunct Professor of Law, teaching U.S. Supreme Court Litigation at the University of Texas School of Law, from 2004-2009. He has also served as an Associate Deputy Attorney General at the U.S. Department of Justice, and as a law clerk to Chief Justice William Rehnquist on the U.S. Supreme Court.
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 Authorization to Initiate Litigation for the Actions by the President Inconsistent with His Duties Under the Constitution of the United States: Hearing Before the H. Rules Comm., 113th Cong. (2014) (statement of Jonathan Turley, Professor, The George Washington University Law School), available at http://docs.house.gov/meetings/RU/RU00/20140716/102507/HMTG-113-RU00-Wstate-TurleyJ-20140716.pdf.
 Greg Richter, Jonathan Turley: America Becoming ‘Imperial Presidency,’ Newsmax (June 4, 2014), http://www.newsmax.com/Newsfront/Jonathan-Turley-Obama-presidency-power/2014/06/04/id/575014/.
 Transcript, President Obama’s June 30 Remarks on Immigration, Wash. Post (June 30, 2014), http://www.washingtonpost.com/politics/transcript-president-obamas-remarks-on-immigration/2014/06/30/b3546b4e-0085-11e4-b8ff-89afd3fad6bd_story.html.
 Charles C.W. Cooke, The ‘We Can’t Wait’ Clause, National Review (Aug. 28, 2014), http://www.nationalreview.com/article/386613/we-cant-wait-clause-charles-c-w-cooke.
 Senator Ted Cruz, The Legal Limit: Reports on the Obama Administration’s Lawless Abuses of Power, http://www.cruz.senate.gov/lawless/.
 Senator Ted Cruz, The Obama Administration’s Unprecedented Lawlessness, 38 Harv. J. L. & Pub. Pol’y 63 (2015), http://www.harvard-jlpp.com/wp-content/uploads/2015/02/Cruz_Final.pdf.
 The Federalist No. 47, at 244 (James Madison) (Gary Wills ed., 1982).
 The Federalist No. 51, at 262 (James Madison).
 Anthony Everitt, The Rise of Rome: The Making of the World’s Greatest Empire 403 (Random House 2012).