Aside from objecting to his practice of issuing executive orders to accomplish what Congress specifically refuses to legislate and his “discretion” not to enforce laws he doesn’t like, most of the criticism of President Obama’s lawlessness involves his ignoring or amending the requirements written into the Obamacare legislation. Yesterday, however — in a post asking “Can the President Spend Money on Something Congress ‘Defunds’?” — David Bernstein reminded us of another potentially more serious transgression of the president ignoring the constitutional boundary the Constitution creates between the Congress and the Executive on spending power.
Bernstein was referring to the 2011 Budget Deal, which included an item with bipartisan support refusing funds for several “czars” Obama had appointed to get around the difficulty of having senior advisers approved by Congress. “I’ve always thought that when it came to turf wars between the executive and legislature, Congress held the trump card of the “power of the purse,” Bernstein wrote, but trump card trump only when they are played, and Congress, unwilling to consider impeachment, did nothing, allowing the president to continue spending funds that not only were not authorized but that were specifically denied.
Some readers may be old enough to remember the old days when Barack Obama was widely regarded as a refreshing idealist, sent by some divine force to clean up the slothful and corrupt pragmatic swamp of Washington. (On his foreign policy idealism, and its abandonment, see here.) In that regard, one of the most sadly revealing items in Bernstein’s informative post is the following defense of Obama’s actions in a comment:
From a legal realist perspective, an unenforced law is hardly a law at all: the law is whatever you can get away with. So, if in practice, the constitutional structure permits the executive to do something without any negative legal consequences for them, then it is effectively constitutional, whatever the text of the constitution, or the opinions of legal academics and pundits, or obiter dicta (even of the Supreme Court), may say.
Oh, I almost forgot that I promised you some Obamaian humor. It was provided by Huffington Post back in 2011 in its post, “Obama Tells Congress He’s Keeping His Czars,” recalling candidate Obama in 2008 stating his opposition to “signing statements” like the one he had just signed thumbing his regal nose at Congress. “[I]t’s worth noting that the use of the tool stands in stark contrast to the position Obama took during the presidential campaign, when he criticized George W. Bush’s use of signing statements and went so far as to suggest the practice violated basic constitutional law,” HuffPo wrote, embedding a YouTube video showing candidate Obama’s pontificating reply to a question about George W. Bush’s use of signing statements:
Yes… This is part of the whole theory of George Bush that he can make laws as he is going along. I disagree with that. I taught the Constitution for 10 years. I believe in the Constitution and I will obey the Constitution of the United States. We are not going to use signing statements as a way of doing an end run around Congress. All right?”
At least he didn’t say “Period.”
