There has been quite an “end zone dance” of late by conservative Republicans across the bitterly anti-Obama red states. The reason for such unbridled glee centers upon President Obama’s failure to persuade the 5th Circuit Court of Appeals to undo an injunction by a federal judge in Brownsville, Texas. This injunction blocks the implementation of Obama’s executive order allowing some 5 million mostly Hispanic immigrants to remain in this country indefinitely on a special work status. As usual anytime anti-Obama ire is aroused in these parts his legions of detractors engage in an abundance of hyperbole to describe the historic seriousness of the President’s alleged missteps that resulted in his efforts being thwarted. In the case of his immigration related executive order Obama acted out of necessity given the Republican Congress’s refusal to budge on the increasingly troublesome issue. There was little doubt in anyone’s mind that the involvement of the third “co-equal” branch of government – the judiciary — would be necessary to determine the Constitutional propriety of President Obama’ unilateral action. In reality, there is ample precedent since the founding of the nation for Presidents to test the power of the office against a recalcitrant legislative branch and the judgement of the Supreme Court.
A brief refresher course in civics should suffice to illustrate this point. As the gears of the federal government lurched into motion shortly after the founding there was initially a significant measure of uncertainty as to what the roles of the Supreme Court and the lower federal courts were intended to be. This uncertainty was erased by virtue of the famous case entitled Marbury v. Madison when chief Justice Marshal held that the Supreme Court did indeed have the power to determine whether actions of the legislative branch and, by extension of his reasoning, the executive branch were allowable according to the language of the new United States Constitution. Following this holding by the High Court the new nation did indeed have its intended three co-equal branches of government – the legislative (Congress), the executive (President) and the judicial (the Supreme Court) – making our unique system of checks and balance possible.
Given the parameters established by the constitution, is President Obama guilty of the accusations of his detractors that he is a tyrant of previously unprecedented proportions, bent on establishing a dictatorship while taking liberties in governing without so much as consulting the Congress? If so Obama is in some good company. Let us consider a few examples of executive actions of previous Presidents.
All Presidents have sought to enforce their ideas of governance via unilateral executive orders. Often the reasons are related to the plodding, cumbersome nature of Congressional action when haste is required or when Congress refuses to act at all. President Abraham Lincoln was prolific in his use of executive orders. In 1863 Lincoln issued the Emancipation Proclamation – often viewed as the most bold and far reaching executive order in history. President Teddy Roosevelt was openly a believer in the role of big government and a powerful executive branch. Teddy Roosevelt issued a record 1,006 executive orders. Later his fifth cousin Franklin Roosevelt issued a whopping 3,728 executive orders. Examples such as the forced internment of Japanese Americans during World War II and the creation of the WPA and hundreds of other similar programs to cushion the impact of the Great Depression were virtually all handled by executive orders. John F. Kennedy established Affirmative Action and Lyndon Johnson initiated Equal Employment Opportunity through executive orders. Harry Truman famously nationalized the steel mills and was subsequently rebuffed by the Supreme Court. George W. Bush issued upwards of 1,200 “signing statements” indicating which parts of congressional acts that he would or would not enforce. Far from being a dictator the likes of which we have never seen President Obama may be described as somewhat average in his efforts to govern alone.
The June Supreme Court decision making season is upon us. Several significant cases will be decided but certainly the two most watched will be those involving the continued viability of the Affordable Care Act and the extent of constitutional protections afforded same sex marriages. The first will determine if the federal government may continue to pay subsidies under “Obamacare” for lower income people living in states that have refused to create state exchanges. The second will determine whether same sex marriages will be allowed nationally or remain confined to certain states. Millions of citizens will be affected by these two decisions alone as will President Obama’s legacy and the whole process is infused with politics as the 2016 Presidential election awaits.
Politics allow “the people” to have the ultimate role. If objections to Supreme Court interpretations are robust enough there are options to deal with them. First, the guiding language of the Constitution may be amended. Congress may propose amendments that must be ratified by the states or the sates may call a convention to amend the constitution. Secondly, as the saying goes, elections have consequences. The President appoints members to the Supreme Court and the Senate confirms or rejects them. Thus, the respective parties determine who these appointees are by their ability to elect the President and the majority of the Senate. With the other party controlling Congress, President Obama is on his own.
» Dr. Marty Wiseman is Professor Emeritus of Political Science and Public Administration and Director Emeritus of the The Stennis Institute of Government at Mississippi State University. His email address is firstname.lastname@example.org.