After Americans wearied of “fundamental transformation” and gave Republicans decisive Congressional majorities in the 2014 midterm elections, Barack Obama famously sniffed that he didn’t really need Congress. By the power of his pen and phone alone, he could implement his agenda. He meant it. In the last years and months of his term, without new legislation from Congress, the Obama administration adopted sweeping new regulations on oil and gas mining, electricity generation, federal control of the internet, rewrote federal immigration law, and shoehorned America into a one-sided nuclear pact with Iran without seeking Senate ratification.
It was an impressive list of policy ticks. Of course, one problem with ruling by presidential edict is that the next president might decide to reverse course on all those unilateral decisions. At least, that is how it used to work. But, a radical movement of lawyers and judges is trying to turn basic civics and government upside down.
Every student learns in grade school that a bill becomes a law only after it’s voted on by both houses of the legislature and signed by the president. Then the president oversees enforcing the law. The new breed of progressive leftist resistance is trying to scrap that historic formula into a one-way liberal ratchet. A new policy becomes law by means of an executive order or regulation, whether Congress acts or not. It gains permanent status when a later president tries to change it, liberal supporters of the prior policy sue to block the change, and activist courts protect it and slap down efforts by later presidents to exercise their own executive power.
The new civics is gaining cachet on the Left, which is counting on the judiciary to preserve liberal policy gains from harm by a Republican president and a Republican Congress. Thus, we have such intrusions as an appellate order ruling that the EPA may not postpone enforcing extreme and costly new regulations on oil and gas drilling while it reconsiders the regulation for possible repeal.
Similarly, after President Trump announced his intention to withdraw President Obama’s policy on Deferred Action for Child Arrivals, a policy that not only spared “dreamers” deportation, but granted them eligibility for work and benefits, former Homeland Security Head Janet Napolitano announced a legal challenge. There is something blithely and literally lawless about her justification. Napolitano argues that Dreamers are good people in a tough situation, and that DACA was a legitimate exercise in prosecutorial discretion. Well, first, a tough situation doesn’t authorize the president to re-write the law; and second, if the executive branch can use its discretion to alter a statute, Napolitano can offer no reason the same branch is barred from using the same discretion to return to the plain meaning of the law.
Similarly, after Trump announced plans to end a illegal subsidy that President Obama had engineered to cover insurance losses in Obamacare exchanges, several states have announced plans to sue the administration to keep the subsidies flowing. This case is especially egregious, as Andrew McCarthy explains. A federal judge has already ruled that Congress did not appropriate the funds for the insurance companies and therefore Obama had no authority to give them the money. Trump’s action is simply reverting to the plain language of Obamacare. But, states and Obamacare’s cheerleaders in the national media are excoriating Trump and hoping the courts will save the illegal bacon.
The pattern continues in energy development. Obama banned drilling in certain areas of the Arctic and the Atlantic. Trump announced a lifting of the ban, and now environmental groups have filed suit to prevent Trump from exercising independent judgment and going his own way.
In all cases, the litigants are unconcerned and unembarrassed that they are asking courts to rule president number 45 does not have exactly complementary powers to decide and act on the same issues as president number 44. Their attitude is, we won it under Obama, and we are entitled to keep it under anyone else. Thanks to Harry Reid doing away with the filibuster for lower courts, the appellate courts are stacked with fresh Obama appointees eager to protect his legacy. Thanks to Mitch McConnell taking the next step and abolishing the filibuster for Supreme Court nominees, the high court might have something to say about that.