Donald Trump’s unexpected win last week came as a shock to millions of Americans. Some rejoiced at the landslide Republican victory; others took to the streets to burn American flags, riot and yell hysterically at one another.
I, too, was surprised by the outcome of Tuesday’s election. This column was originally written in anticipation of a Clinton victory — someone who, let’s just say, has enjoyed a tangential relationship with the law. That said, the issue of executive overreach is one that transcends party lines and often shrouds our understanding of the presidency.
The Constitution of the United States establishes the president as the nation’s chief executive. Under Article II, Section 3, this requires that his primary domestic function is to “take Care that the Laws be faithfully executed.” Equally, the Constitution grants federal legislative power exclusively to Congress and federal judicial power exclusively to the Supreme Court.
The president cannot refuse to enforce a federal law for ideological reasons. He or she has the power to veto a bill for whatever reason, but once that bill becomes a law, the president has a constitutional responsibility to administer it as it is.
Perhaps the most destructive legacy of the Obama administration is the view that the president can choose to selectively enforce federal statutes if Congress “fails to act” in a certain way. In 2014, for example, President Obama unilaterally declared that 5 million illegal immigrants would be exempt from deportation. In an effort to defend its actions, the administration employed “prosecutorial discretion,” arguing that the executive branch has the power to prosecute criminals as it sees fit.
Prosecutorial discretion exists for efficiency purposes; it is based on the understanding that the executive branch cannot possibly pursue every violation of federal law due to the limited resources at its disposal. It allows the Justice Department to prioritize and prosecute cases based on the relative severity of the crime. Prosecutorial discretion cannot, however, be applied to entire laws or entire categories of individuals. The president simply cannot refuse to enforce federal immigration statutes and decline to deport illegal immigrants.
If that were the case, it would establish a dangerous precedent for future presidents to selectively enforce or entirely ignore the laws they disagree with. Rather than directing ICE agents not to deport illegal immigrants, President Trump could direct IRS agents not to prosecute anyone who refuses to pay capital-gains taxes. He could effectively repeal Obamacare on his own, just by refusing to enforce its provisions.
If a president has the authority to enforce some laws but not others, how can the congressional representatives of the people trust he will administer any laws with fidelity or objectivity? In the words of once-Sen. Barack Obama, “What do we do with a president who can basically change what Congress passed by attaching a letter saying I don’t agree with this part or that part?”
Much of President Obama’s legacy of executive overreach will be determined by the courts after he leaves office, such as his deeply controversial 2013 gun control initiative. Even so, the president’s unprecedented efforts to unilaterally recreate the law over the past seven years have already been met with fierce resistance from the Supreme Court and from appellate courts across the country.
In the specific case of Obama’s executive amnesty program, it was effectively deemed unconstitutional earlier this year. In June, five months after the death of conservative justice Anthony Scalia, the Supreme Court held a tied vote on the amnesty program. The 4-4 vote effectively upheld the ruling of a lower appellate court to strike down Obama’s executive actions. Liberals condemned the decision on ideological grounds, defending the president’s view that unlawful immigrants living in the United States should not be deported, detained or penalized.
This reaction demonstrates the real danger of executive overreach: it will always be supported by those who agree with the political or ideological aims of the perpetrator. Of course, such a stance is inherently short-sighted, because expanding the power of one president today will inevitable expand the power of the next president tomorrow. It is ironic that the same liberal pundits anxious about the authoritarian overtones of Trump’s campaign said nothing as President Obama sought to unilaterally establish law by executive decree.
As both parties continue to move further and further apart, the temptation to use the Obama model of “pen and phone” legislation will become increasingly attractive to politicians and their supporters. However, this model is simply incompatible with the American values of republicanism, checks and balances, and the separation of powers. I urge president-elect Trump and his supporters to remember this as we approach Inauguration Day in January.
