KERPEN: The Congress-optional president

Obama’s rule by executive fiat mocks the Constitution

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On Oct. 11, after Senate Majority Leader Harry Reid had taken extraordinary measures to stall an embarrassing vote as long as possible, the Senate decisively rejected President Obama’s “jobs” plan. The same day, in Pittsburgh, Mr. Obama explained to his union allies that he would move forward regardless. “We’re not gonna wait for Congress,” Mr. Obama explained. “We can act administratively without additional congressional authorization and just get it done.” Now we know that part of what he meant was yet another mortgage bailout - one that will cost bond investors billions - via subsidized refinancing.

This remarkable disregard for the rule of law and proper constitutional procedures fit a familiar pattern in this administration: What it cannot achieve legislatively it will attempt to do by regulatory fiat. Congress must actively assert its legislative prerogative or be relegated to the sidelines.

One year ago, the American people decisively rejected Mr. Obama’s big-government agenda in a landslide election. Surely, most voters thought that election would at least halt, if not reverse, the country’s profound lurch toward a larger, more intrusive and more expensive federal government.

Unfortunately, Mr. Obama has chosen to moderate his rhetoric only somewhat and his actual policies not at all. And Congress, institutionally weakened by decades of delegating legislative power, capped by two massive new grants of regulatory power to the executive branch in Mr. Obama’s health care and financial regulation bills, has thus far proven unwilling - at least on the Senate side - to stand up to him.

Consider that the day after last year’s election, Mr. Obama explained to the press corps that his signature cap-and-trade energy rationing legislation - which cost dozens of House Democrats their seats in Congress and was decisively rejected by the American people - was “one way of skinning the cat; it was not the only way. It was a means, not an end.” He clearly instructed his Environmental Protection Agency to go ahead and act as if the cap-and-trade law had been passed, even writing its emissions abatement schedule into the EPA budget.

The month after the 2010 election, the Federal Communications Commission, chaired by Mr. Obama’s close friend and fundraiser Julius Genachowski, voted on a 3-2 party-line vote to impose net-neutrality regulations, the first economic regulation of the Internet in nearly a decade. It did this even though legislation for net neutrality had failed to gain any significant support in Congress and despite the fact that the decisive Comcastv. FCC court ruling had already made clear that the FCC lacked jurisdiction. What’s more, all 95 congressional candidates in last year’s election who pledged to support net neutrality lost. Zero for 95.

The union agenda, as expected, shifted to the National Labor Relations Board, the National Mediation Board and the Department of Labor. Via rulemakings by unelected and unaccountable federal bureaucrats, these agencies are now implementing nearly every aspect of the card-check legislation rejected by the last Congress. The NLRB is especially egregious, relying on a recess-appointed former union lawyer, Craig Becker, and an unconfirmed actinggeneral counsel, Lafe Solomon. Mr. Solomon not only issued the now-infamous unfair labor practice complaint against Boeing for building a nonunion factory in South Carolina but is also suing four states for adopting state-level secret ballot protections.

Our Congress-optional president has been surprisingly open about his approach. Last month, at a gala for the Congressional Hispanic Caucus Institute, he said, “Until Nancy Pelosi is speaker again, I’d like to work my way around Congress.”

The sad irony in all this is that Mr. Obama campaigned against President George W. Bush’s executive excesses, promising a return to a constitutionally limited executive branch. Once elected, however, Mr. Obama discovered that presidential power is only a problem when someone you don’t like is the president.

Even that symbol of Bush-era executive power - the signing statement - has reached a new level of abuse under Mr. Obama. In April, Mr. Obama and House Republican leadership concluded tense negotiations on a funding bill to avert a government shutdown. Part of the deal the president specifically agreed to was language blocking funding for four of the president’s policy advisers - czars, colloquially. Mr. Obama agreed to the language but after the bill’s passage, he used a signing statement to explain that he would simply disregard it.

Now our Congress-optional president is moving forward on his latest bailout-and-stimulus scheme without congressional authorization. Enough is enough. Congress must assert its responsibility under Article I, Section 1 of the U.S. Constitution. It is Congress, not the president, that is vested by the people with legislative power. The Senate must do what the House has repeatedly done and stand up to this administration - or voters must elect a Senate that will.

Phil Kerpen is vice president for policy at Americans for Prosperity and author of “Democracy Denied: How Obama is Ignoring You and Bypassing Congress to Radically Transform America - and How to Stop Him” (BenBella Books, 2011).

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