Expanding presidential power

12/3/2014
By Tim Krieger

President Obama's recent executive order on immigration directs executive agencies of the federal government to refuse to enforce the law of the land. And his reason for this order is remarkably straightforward: because Congress refuses to change the law in a way he demands.

Mr. Obama surely has read the U.S. Constitution, particularly Article II, Section 3, which provides that, among his principal duties, “he shall take Care that the Laws be faithfully executed.”

Tellingly, prior to his recent decision, the president in numerous public statements admitted he had no authority to change our immigration laws. Yet he has proceeded, with hardly an attempt to explain the obvious contradictions between his action and the text of the Constitution, American historical precedent and his own prior statements.

It has been said that power tends to corrupt — the greater the power, the greater the tendency. Perhaps the central dilemma of American political thought at the time of our founding was how to control that tendency and its results — that is, how to allocate the powers necessarily vested in government in a way that maximizes liberty while maintaining a necessary degree of order.

The American solution to that dilemma has been to balance power against power, both between state and federal governments, and among the executive, legislative and judicial branches of each, and to bind all under the rule of laws rooted in the consent of the governed as established by and through their elected representatives.

In our constitutional form of government, what has been called the “despotic power” of government, the power to propose and enact laws, rests with the legislative branch. Why? Because the legislative branch is both the most representative, as the closest to the people, and where power is most diffused. Only in the legislative branch can that power not be dominated by one person or by a small group of people.

The president's action upsets that delicate balance. According to the president, if Congress does not reach the conclusion he thinks best on immigration policy, he can impose a solution without Congress.

The danger to all of us should be obvious. And the president's most ardent supporters should be warned: Once this new precedent now being force-fed to the American people is chewed, swallowed and digested, it will be served up again.

Power by its nature expands to the point of constraint. The president's action dangerously weakens the constraining power of the legislative branch. If left unchallenged, presidential power, without any other obvious constitutional constraint, will inevitably expand. And that expanded power, once established and accepted, will be used.

The rule of law and the constraints upon power established by our Constitution protect all of us. Only a fool would trade away the protection afforded by the constitutional separation of powers and a strict adherence to the rule of law for a temporary political victory. And that is something on which the left, right and center should be able to agree.

Tim Krieger, a Republican, represents the 57th Legislative District in the state House.

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