The President is being asked to cave, not compromise

As the shutdown moves into its second week, I remain convinced that President Barack Obama should stand firm against the radical elements of the House and Senate for two reasons: to protect the constitutional powers of the executive and to preserve the idea of compromise and deliberation in Congress.  It is possible to preserve the latter by remaining intransigent now.

President Obama is not being asked to compromise, he’s being asked by a small minority in both Houses to cave on a signature legislative accomplishment.  There’s a big difference.

Compromise lies at the heart of the American experience and it was through our original compromises that we ended up with a system designed for political struggle.

The Founders arrived at the separation of powers as a way of dealing with the conflicts of their time.  Hence the creation of a tripartite form of government where each branch would compete against the other for power.  This type of governing arrangement is by its very nature somewhat vague: the executive, legislative, and judicial powers are not so neatly packaged.  Each branch can play a role in the affairs of the other and this is how the founders intended the system to work.  So throughout our history we have had a lot of confusion about the appropriate jurisdictions of the branches, specifically the executive and legislative branches.  That leads to intense political struggles that are, on the whole, healthy for our republican system.

A government shutdown or debates over the debt limit are often the result of this constitutionally ordained invitation to struggle.  But the current shutdown, and the potential default on our debt, have at their core an attempt to tear down this President, and by extension executive power.  For that reason, the President cannot cave.

Opponents of ACA may claim they are just using all tools available to oppose a bad law.  In their view it’s a really bad law.  But their legitimate claims are hard to distinguish from the hyperbole they’ve unleashed.  Consider, for example, the latest meme on the congressional exemption from Obamacare.  The exemption is a figment of wild imagination.  It does not exist and it is telling the some members of Congress are willing to throw their own staff under the bus in their attempts to defund or repeal the ACA.

Some critics also claim that the White House is simply reaping what it has sown, that greater compromises during the early debates over ACA could have turned the Act into a modern-day Social Security with widespread and bipartisan support.

One is free to wonder whether the President engaged his political opponents sufficiently during the initial debates over the Affordable Care Act.  One possible clue is, of course, that at the heart of the ACA is the individual mandate, a fairly mainstream Republican idea.  The insurance exchanges also give a very big nod to the private sector.  Both would appear to suggest a rather compromising position for a President accused of being a Marxist radical.

But I digress.

There is no rational reason why Congress should not seek to fix that which ails the ACA, monitor its successes and failures, and exercise precise oversight of the administration of the Act.  Such a response would require the thoughtful deliberation that has been missing for much of this “debate.”

Deliberate they refuse to do.  They only wish to repeal or defund through a shutdown or a default.  A President who caves in the face of such a policy threat risks the standing of the executive.

American political history sometimes favors presidential power and at other times congressional power.  This ebb and flow is a natural byproduct of our constitutional arrangement.

Presidential power expanded greatly with FDR and kept growing until the 1960s and the so-called imperial presidencies of Johnson and Nixon.  During the post-Watergate era there was a resurgence in Congressional authority and the two branches mixed it up quite a lot during the 1980s and 1990s leading to an unprecedented modern era of congressional government immediately following the 1994 elections.

These shifts in power have at their root constitutional ambiguities.

Article II lists those things a president should do but are these the only legitimate powers or are others included?  This question has been answered quite differently throughout history.  President Taft said that the President could not do anything unless the action was specifically authorized by the Constitution or law.  He wrote that the president “can exercise no power which cannot be fairly and reasonably traced to some specific grant of power.”  His predecessor and mentor, Theodore Roosevelt believed differently.

TR said that is was the President’s right and duty to do “anything that the needs of the Nation demanded, unless such action was forbidden by the Constitution or by the laws.”  Taft and TR present opposite ends of the continuum regarding the nature of interpreting Article 2.

Conservative columnist Charles Krauthammer takes Obama to task for delaying a key element of ACA–the employer mandate–suggesting it’s an example of a President ignoring the Constitution in his brazen pursuit of power.  He takes the Taft approach.

Yet Article II says quite clearly that the executive “shall take care that the laws be faithfully executed.”  Presidential prerogative provides enough flexibility for an executive to delay a legislative start date for a component part of a complex law in order for that law to be faithfully executed.  Obama takes a TR approach.

This give and take, the Constitution’s continued “invitation to struggle,” as Edward Corwin noted, only partly animates our current environment.

The effort to demand repeal of ACA or elements of it during the shutdown as we approach default is not simply a parallel effort by Congress to assert its primacy.

It is a wholesale political and institutional attack on a specific public policy that was recently ratified by a national electorate.  Should the President cave, his future successors will not simply face a resurgent Congress.

They will regularly find their policy agenda held hostage to a distinct minority with grandiose visions of its role.  Compromise will never be in order if such a minority can punch well above its weight and presidents of both parties will be bystanders to the legislative process.

For the sake of his successors, the President should hold firm.

About Peter Ubertaccio

Peter Ubertaccio is the Director of Joseph Martin Institute for Law & Society at Stonehill College in Easton and Associate Professor and Chair of the Department of Political Science & International Studies. His work focuses on political parties, marketing and institutions. He received his Ph.D. in Politics from Brandeis University in Waltham, MA. Professor Ubertaccio and his family live on Cape Cod where he is on the Board of Directors of the OpenCape Corporation and the Sandwich Economic Initiative Corporation.
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13 Responses to The President is being asked to cave, not compromise

  1. Patrick Johnson says:

    Yet Article II says quite clearly that the executive ”shall take care that the laws be faithfully executed.” Presidential prerogative provides enough flexibility for an executive to delay a legislative start date for a component part of a complex law in order for that law to be faithfully executed. Obama takes a TR approach.

    If Article II clearly states the power Obama is exercising then isn’t Obama’s approach in line with Taft instead of TR as you defined things?

    Article II lists those things a president should do but are these the only legitimate powers or are others included? This question has been answered quite differently throughout history. President Taft said that the President could not do anything unless the action was specifically authorized by the Constitution or law. He wrote that the president “can exercise no power which cannot be fairly and reasonably traced to some specific grant of power.”

  2. Hi Patrick–thanks for reading and great question. I don’t think so only because I don’t think Taft would not have viewed that section of Article II as subject to a TR-like interpretation of presidential prerogative. I tend to side with TR on such matters and read those words as allowing for the action the Obama administration took with regard to that element of the ACA. But I also recognize that TR’s view can be taken too far.

  3. Jeff Semon says:

    Professor, why do I suspect that if the letters were switched from D to R in front of everyone’s name, your opinion would as well?

  4. I don’t know Jeff considering that you do not know me but I am guessing it’s because you prefer simplistic explanations for other people’s thoughts.

    • Patrick Johnson says:

      It’s useful to make hypotheticals. If Romney were President could he have delayed the implementation of the individual mandate for 1 year by exercising authority under Article II (and without any bill from Congress authorizing such)?

      If the TR interpretation is correct, then the answer would seem to be Yes. If the more narrow Taft interpretation is correct then the answer would be No.

      From the Lazarus article in the Atlantic we get this reasoning:

      As McConnell himself notes, both Republican and Democratic Justice Departments have consistently opined that the clause authorizes a president even to decline enforcement of a statute altogether, if in good faith he determines it to be in violation of the Constitution. But, McConnell contends, a president cannot “refuse to enforce a statute he opposes for policy reasons.” While surely correct, that contention is beside the point.

      The Administration has not postponed the employer mandate out of policy opposition to the ACA, nor to the specific provision itself. Thus, it’s misleading to characterize the action as a “refusal to enforce.” Rather, the President has authorized a minor temporary course correction regarding individual ACA provisions, necessary in his Administration’s judgment to faithfully execute the overall statute, other related laws, and the purposes of the ACA’s framers. As a legal as well as a practical matter, that’s well within his job description.

      I’m not sure why the contention of McConnel, which Lazarus supports, is said to be beside the point. If a president cannot “refuse to enforce a statute he opposes for policy reasons” then surely he cannot also refuse to enforce a statute he supports for policy reasons. It seems quite odd to me that support or non-support could possibly be a meaningful distinction in law.

      A comment from the Volokh link brings up this interesting point in the context that past precedents had to do with funding as the (legitimate) legal reasoning behind delays of enforcement of laws:
      www.volokh.com/2013/07/08/mcconnell-on-the-obama-administrations-decision-to-delay-the-employer-mandate/#comment-956314506

      No actually he could not see Train v. NYC. The issue here is that the GOP gave Obama a great out by underfunding the deployment costs, thus its not impoundment, whereas a GOP POTUS simply saying “nevermind” would be violating that law.

  5. Jeff Semon says:

    Must be. You’re very smart.

  6. Brendan P. Myers says:

    A Times commenter pointed out this morning that even at the height of the Sixties, in the battles over Vietnam and then Watergate, at least government worked.

    I’m old enough to remember when Republicans were the party of “law and order.” Truly frightening they believe now they can pick and choose which laws are worthy of “funding” (and by extension, their current efforts to fund “essential” parts of government — Who are they to decide what’s essential?) and which laws are not.

    Don’t think we’ve seen anything like it since the “nullification” efforts in the decades leading up to the Civil War. Frightening times, indeed.

    • Patrick Johnson says:

      Truly frightening they believe now they can pick and choose which laws are worthy of “funding” (and by extension, their current efforts to fund “essential” parts of government — Who are they to decide what’s essential?) and which laws are not.

      Is anyone claiming that Congress doesn’t have the power of the purse? The issue here is that the right to do something is not the same as to be right in doing it. If the Democrats had decided to play this particular game with the funding of something you disliked (Iraq War maybe), would you still hold by your comment?

  7. Patrick Johnson says:

    Some critics also claim that the White House is simply reaping what it has sown, that greater compromises during the early debates over ACA could have turned the Act into a modern-day Social Security with widespread and bipartisan support.

    Can it be said that the White House is reaping what it sowed because it agreed to sequester in 2011 in exchange for raising the debt limit? This created a new normal as of 2011.

    • Patrick Johnson says:

      Just got done reading a new article by Jonathan Chait and he pretty much agrees with me.
      nymag.com/daily/intelligencer/2013/10/debt-ceiling-and-the-conservative-bubble.html

      …Congress has appended debt-ceiling hikes to separately negotiated budget legislation 27 times. It has threatened not to raise the debt ceiling in order to extort concessions only once before, in 2011.

      The gambit worked for Republicans then, and so they assumed they could simply do the same thing again. (Which is why Obama misjudged so catastrophically by submitting to extortion, and is so determined to correct his error.)

  8. Matthew M. says:

    Thoughtful and well-written analysis. One additional point: the ACA was ruled constitutional (for the most part) by the Supreme Court. That is clearing the check of the 3rd branch of government.

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