Trying to nudge the Constitution out of place

Are Americans obsessed with founding documents?

- Paul E. Peterson

Will 2013 come to be known as the year of presidential decree? The year the president ignored Congress, changed the rules of government, and put into place whatever policies he saw fit? The year the United States ended what has been called its “obsession” with its Constitution?

During his first term, President Obama issued executive orders in lieu of laws passed by Congress, signed executive agreements with foreign countries in lieu of treaties ratified by the Senate, and formulated burdensome regulations with little legislative justification. As the administration begins its second term, it is expressing extreme frustration at the constitutional powers held by the House of Representatives. To counter, the administration is threatening to catapult presidential power to levels attained only by such Machiavellian politicians as Otto von Bismarck, who consolidated executive power vis-a-vis the German parliament and local fiefdoms in the late 19th century.

The groundwork for expanded constitutional authority was laid in a recent op-ed piece by Michael Seidman in the New York Times, who argues that “our obsession with our Constitution has saddled us with a dysfunctional political system.” The president should “disobey” the Constitution if he thinks it is sensible to do so, the Georgetown law professor writes. Congress should be required to defend its power over the purse “on policy grounds,” not on some abstruse constitutional provision that says only Congress has the power to tax and spend. “Much constitutional language is broad enough to encompass an almost infinitely wide range of positions,” he says.

If a call for constitutional disobedience is openly advocated in the nation’s leading liberal newspaper, one must assume similar arguments, phrased more carefully, are being elaborated by skilled attorneys inside the White House.

In the year ahead, we can anticipate several things. First, the president will refuse to cut spending by the amount needed to win congressional support for the lifting of the legislatively established debt ceiling. He will instead simply ignore the debt ceiling, claiming that subsequent appropriations have tacitly raised the ceiling automatically. As the president has already said this year: “While I will negotiate over many things, I will not have another debate with this Congress over whether or not they should pay the bills that they’ve already racked up through the laws they passed.” That sentence is unambiguous. The president promises to ignore the debt ceiling so he can have additional leverage in the upcoming negotiations over spending levels. Never let a law stand in the way of the pursuit of power.

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