The core of American democracy — the separation of powers between the executive, legislative and judicial branches — is under assault like never before. The biggest transgressor by far is President Donald Trump. His assertion Saturday that he could use executive orders to provide tens of billions of dollars to unemployed Americans and could suspend collection of payroll taxes without legislative approval is a stunning and unprecedented assertion of dictatorial powers.
But Trump’s two predecessors set the stage for this grotesque overreach with their own progressively worse overreaches. And Supreme Court Chief Justice John Roberts deserves blame as well. His decision to slow walk legal challenges to Trump’s decision to unilaterally transfer billions of dollars in appropriated funds to build a border wall has backfired in a gigantic way by encouraging Trump to believe he can do anything.
Partisans of both parties also deserve blame. Just as their support for the filibuster depends on who controls the Senate, they’re for executive orders supplanting required congressional action when their party holds the White House and are against it when the other party runs 1600 Pennsylvania Ave.
Yes, Presidents Ronald Reagan, George H.W. Bush and Bill Clinton all used executive orders to implement federal action in various ways. All would also issue “signing statements” accompanying decisions to sign legislation that raised questions about provisions of the measures, primarily to try to frame potential future legal fights over the newly enacted laws.
But especially in his final term, President George W. Bush regularly used signing statements in a much more extreme way: More than 700 times, he declared parts of new laws unconstitutional and said the federal government would not enforce them. Charlie Savage, the reporter who won a Pulitzer Prize in 2007 for documenting the younger Bush’s stealth radicalism, said he had done this more often than the 42 presidents preceding him combined.
Barack Obama, then an Illinois senator, denounced this tactic as tantamount to Bush saying “that he can make laws as he is going along.” On the presidential campaign trail in 2008, he promised to drop the practice, saying he knew from his years as a law professor at the University of Chicago that presidents are required under the U.S. Constitution to enforce laws.
That didn’t happen. Not only did Obama quickly begin issuing signing statements objecting to parts of bills he signed into law, he issued a sweeping order on immigration rules for children of undocumented immigrants in 2012 — setting up the Deferred Action for Childhood Arrivals program — despite previously flatly saying he had no authority to unilaterally change immigration laws. In 2010, for example, he said, “I am not king. I can’t do these things just by myself.” In 2011, he said that with “respect to the notion that I can just suspend deportations through executive order, that’s just not the case.” Also in 2011, he said that he could not “just bypass Congress and change the (immigration) law myself. … That’s not how a democracy works.”
Obama was right. The only reason DACA wasn’t killed by the Supreme Court in June was because the Trump administration failed to provide the justifications required under federal law to end a government program.
Obama also unilaterally rewrote and/or ignored parts of his signature legislation, the Affordable Care Act. After “Obamacare” got off to a rough start in 2013, the president ordered so many changes in the law that it amounted to what Northwestern law professors Eugene Kontorovich and John McGinnis called unconstitutional “legislation from the White House.”
But if Bush and Obama deserve blame for normalizing presidential abuses of power, the leader of the judicial branch of the federal government deserves just as much blame for not protecting the Constitution when he had the chance. In July 2019 and again last month, in response to lawsuits challenging Trump’s decision to transfer $2.5 billion in money appropriated by Congress to the Pentagon to fund construction of a border wall, Roberts orchestrated narrow 5-4 rulings that allowed the money to be used while lower courts continued to consider the legality of the transfer.
What makes this so peculiar is that Roberts has sided with the court’s liberal bloc twice against attempts to throw out the Affordable Care Act. As his biographer, Joan Biskupic, has noted, he believes the Supreme Court should generally defer to Congress on major policy legislation, not insert itself into lawmaking. Yet he has chosen to enable the president to do so — and now Trump is openly trying to buy votes with his plan to provide billions of dollars in unauthorized benefits to the unemployed and billions of dollars in unauthorized tax cuts to the employed.
This calls to mind the famous aphorism attributed to many: “A democracy can only exist until the voters discover that they can vote themselves largesse from the public treasury.” Now we’re going to find out if a democracy can exist when a president desperate for reelection can provide this largesse to the public without any votes at all.