Obama vs. Congress—and the Law

The President has taken a hatchet to welfare reform, the immigration laws, and ‘No Child Left Behind.’

(published in The Wall Street Journal, July 27, 2012)

By DAVID B. RIVKIN JR. AND LEE A. CASEY

On July 12, President Obama unilaterally gutted the Clinton administration’s signature achievement—welfare reform. The 1996 welfare-reform law, while passed with strong bipartisan support, has been the bane of progressives, who have never accepted its fundamental principle that those who can work must work. Over the last year, the Obama administration also took the hatchet to the immigration laws and to the Bush-era “No Child Left Behind” statute.

These actions have two things in common. First, they were announced with much fanfare and designed to appeal to the president’s liberal base. Second, and much worse, they were implemented by suspending enforcement or waiving applications of laws Mr. Obama does not like.

The president cannot write—or rewrite—the laws. The Constitution makes Congress the legislature, and the president cannot simply ignore its decisions.

The entire system of separation of powers—which is the heart of the Constitution’s “checks and balances” designed to limit governmental power and thereby protect individual liberty—depends upon each branch of the federal government fulfilling its assigned role and respecting that of the others. Unfortunately, Mr. Obama has now made clear that he won’t respect these basic constitutional limits on his power.

Last year, for example, the administration was displeased with Congress’s failure to enact the White House-supported Dream Act, which would have legalized numerous categories of young undocumented aliens. And so, in August 2011, the administration announced it would not deport illegal aliens who had only violated the immigration laws. Henceforth, only those who had committed criminal offenses, in addition to immigration ones, would be the subject of deportation proceedings.

Mr. Obama followed this with a White House announcement in June of this year that granted effective amnesty to undocumented aliens under age 30 who had come to the United States before the age of 16. This entire group will no longer be subject to deportation proceedings and may also qualify for renewable work permits. Thus the president implemented portions of legislation he could not get through Congress on his own signature and acted in ways blatantly at odds with the existing immigration laws, which provide for no such exemptions from deportation.

Earlier this year, in February, the administration gutted the strict student testing and monitoring requirements of the 2001 “No Child Left Behind” law. The law, which passed with strong bipartisan support, is meant to make schools more accountable for their pupils’ progress. But the testing and monitoring requirements are loathed by teachers unions across the nation—a key Democratic constituency for November. Unable to convince Congress to revise key provisions of the law, the president simply authorized “waivers” from many of these requirements—including one that states establish reading and math proficiency standards for all students by 2014. But “No Child Left Behind” does not provide for such waivers.

Most recently, the administration announced that it will waive the central tenet of the Clinton welfare-reform law—the requirements that recipients work or prepare (through approved education or training) to do so. Although certain aspects of the Personal Responsibility and Work Opportunity Act are subject to waiver, the federal work requirements are not among them.

The pattern of lawlessness here would have outraged the Constitution’s Framers. It should outrage all of us—including and especially members of Congress on both sides of the party divide.

Congress makes the laws and they must be enforced. For the Constitution’s Framers, this principle was bedrock—not only the ultimate achievement of our own revolution, but of England’s Glorious Revolution a century before. King James II was deposed in 1688, in no small part, because he claimed and exercised the power to “suspend” parliament’s laws.

Congress does not have to reach back to the 17th century for a precedent. Like President Obama, President Richard M. Nixon also refused to implement federal statutes when he believed Congress was wrong. Nixon did so by refusing to spend (“impounding”) money authorized and appropriated by Congress. It responded with the Congressional Budget and Impoundment Control Act in 1974, followed by a Supreme Court decision (Train v. City of New York, 1975) overturning one of the president’s impoundments, effectively ending the practice.

The Constitution gives the president many tools, some legal and some political, to use in his daily cut and thrust with Congress over national policy and priorities. But it does not permit him to ignore the laws Congress has enacted, and to make his own rules simply because he thinks the desired policy result is the right thing to do. A president who does not understand this does not understand the constitutional requirement that he “take care that the laws be faithfully executed,” or his inaugural oath to “faithfully execute the Office of President of the United States.”

Messrs. Rivkin and Casey served in the White House and U.S. Department of Justice during the Reagan and George H.W. Bush administrations.

A version of this article appeared July 27, 2012, on page A13 in the U.S. edition of The Wall Street Journal, with the headline: Obama vs. Congress—and the Law.

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