by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Syracuse law professor Tara Helfman writes in the latest print edition of Commentary magazine that President Obama resembles, in at least one respect, a classic American literary character.
When it comes to getting his way on domestic policy, President Obama seems to have found a model in Herman Melville’s Bartleby, the Scrivener: What he cannot accomplish through the legislative process, he is achieving through deliberate inaction. When asked to do his job, Bartleby replies, “I prefer not to.” Notwithstanding President Obama’s constitutional duty to enforce the laws of the United States, he prefers not to. Where federal laws conflict with his policy preferences on controversial issues such as gay marriage, illegal immigration, and drug policy, the president has opted not to enforce or defend them. And, remarkably, he is doing this with the support of the Supreme Court.
By a narrow margin, the high court recently endorsed the president’s approach in two important cases involving the nonenforcement and nondefense of federal law: Arizona v. United States (2012) and United States v. Windsor (2013). These rulings go well beyond upholding the constitutionality of the president’s political agenda. They recognize and affirm the power of the president to shape public policy through what effectively amounts to the unilateral repeal of legislation—without the involvement of the legislative branch of the U.S. government. The Court has acquiesced in the creation of a super-veto that is a patent violation of the separation of powers. …
… Taken together, these decisions allow the president not to do his job — to ignore federal law by instructing the responsible agencies not to enforce or defend statutes with which he disagrees. The authorize the president to render federal law a dead letter simply by disregarding it, a clear violation of the separation-of-powers doctrine. Under the Constitution, Congress has the power to change or repeal federal legislation with the approval of the president. But even where the president vetoes a bill, Congress may pass it through a legislative override. Yet what President Obama has done — and what the Supreme Court has endorsed — amounts to a super-veto contemplated nowhere in our Constitution. And it is clear that the president intends to use this super-veto to the hilt.
In addition to the literary comparison, one could say that President Obama is following the lead of one of his predecessors — the one who said “When the president does it, that means that it is not illegal.”