An abysmal legacy of Obama’s presidential overreach
Many times over the course of President Obama’s second term, I have stood on the House floor and made an obvious but important observation. Our Founding Fathers got it right. They gave us a president and not a king. Knowing this, I have objected vigorously as this President pulls more and more unconstitutional powers to himself. If a future Republican president were to do the same thing, I will condemn him just as vigorously.
And while there are many reasons to oppose President Obama’s policies, the longest lasting damage of his presidency may not be the policies themselves but the way he pursues them – ignoring Congress and rewriting laws to fit his policy goals. I remember well listening to his State of the Union address when he promised to bypass Congress by using his phone and his pen, then watching my democratic colleagues stand up and cheer. Watching them, I thought, “The President has just said he doesn’t care about you. He doesn’t care about the 700,000 people that you represent. What he is proposing will shred the Constitution.” And yet they cheered…
Even as the courts continue striking down many of the President’s actions, including recently his regulation of hydraulic fracturing on public lands and his immigration amnesty, his repeated pattern of overreaching will have long-term consequences for our Constitutionally-enshrined separation of powers. There is little doubt this president has opened the door for future presidents to try the same thing. Americans of both parties should be alarmed to see the balance of power consistently tilted toward the presidency.
To put this in perspective, a brief review of some of the President’s most outrageous power grabs is in order. The President’s Waters of the U.S. rule magically transformed the 1972 Clean Water Act into permission for the EPA to regulate every wet patch of ground anywhere in the country. His Clean Power Plan made a similar expansion of the 1973 Clean Air Act, discovering a heretofore unknown authority for the EPA to regulate the nation’s entire electrical power grid. I mention the dates because in over 40 years these laws were never interpreted so broadly. With his Set-Top-Box mandate and Net Neutrality rules, the President has first politicized and then inserted the Federal Communications Commission into the telecom sector in unprecedented ways. The list goes on and on. From international nuclear agreements to immigration, healthcare, education, property rights, religious freedom, and drug policy the President treats laws as if they are merely suggestions.
And it’s not just Republicans who are concerned. The Supreme Court has slapped down the President’s regulatory overreach with alarming frequency. As legal scholar Ilya Shapiro has pointed out, the President had more unanimous losses at the Supreme Court in his first five years than President Bush did in two full terms. President Obama loses unanimously at the Supreme Court twice as often as President George W. Bush and 1.5 times as often as President Clinton. And those losses keep coming.
So what should be done? Congressional Republicans have in fact done quite a lot over the past several years. On the Appropriations Committee on which I sit, we have included hundreds of restrictions on the way the President and his agencies can use taxpayer dollars. So while the president may write aggressive and unconstitutional regulations, we have, in many cases, successfully denied him the funding to implement those regulations. We will continue using the power of the purse to rein him in.
But knowing that the Pandora’s Box has been opened, and now fearing future presidents will be even more aggressive in claiming power they do not have, it’s clear that structural reforms need to be implemented. Speaker Paul Ryan’s taskforce on Restoring Constitutional Authority has proposed a number of important reforms. Last week, the House passed the Separation of Powers Restoration Act, a bill I co-sponsored, which will reform the way courts review the regulations created by federal agencies. Instead of giving strong deference to the way federal bureaucrats interpret laws, courts will be able to review those regulations under a much more skeptical standard. This is a common sense and long overdue reform that will help keep regulatory agencies in check.
It’s too late for this president to change his legacy of Obamacare, regulatory overreach, and court losses. But if our next president wants a different legacy, he or she should consider working with Congress and the Americans we represent.