Presidents Cannot Ignore Laws as Written

 

Elizabeth Price Foley is a professor of constitutional law at Florida International University College of Law. She is the author of "The Tea Party: Three Principles."

January 29, 2014

As every grade-schooler knows, Congress has sole authority to make laws. The president has a corresponding duty to "take care that the laws be faithfully executed." When one branch of government exceeds its authority, separation of powers is violated, and representative government breaks down.
Presidents have power to fill gaps or ambiguities in laws passed by Congress. They do not, however, have power to ignore laws as written. For example, when President Obama unilaterally raised the minimum wage for federal contractors' employees, he directly contravened the Fair Labor Standards Act, which says that "every employer shall pay to each of his employees" a minimum wage of $7.25 per hour.

Executive orders can erode the separation of powers, breed disrespect for the rule of law and increase political polarization.

President Obama has shown a penchant for ignoring the plain language of our laws. He unilaterally rewrote the employer mandate and several other provisions of the Affordable Care Act, failing to faithfully execute a law which declares, unambiguously, that these provisions "shall" apply beginning Jan. 1, 2014. Similarly, in suspending deportation for a class of young people who entered this country illegally, the president defied the Immigration and Nationality Act, which states that any alien who is "inadmissible at the time of entry" into the country "shall" be removed.
The only strength gained by unilateral presidential lawmaking is raw speed: policies can be implemented more swiftly by unilateral presidential action than by congressional deliberation and debate. But the dangers are many, and should counsel any American — of whatever political persuasion — that such dispatch comes at a high constitutional cost.

When the president fails to execute a law as written, he not only erodes the separation of powers, he breeds disrespect for the rule of law and increases political polarization. The president's own party — for example, the current Democrat-controlled Senate — will face intense pressure to elevate short-term, partisan victory over defending constitutional principles. If partisan preferences prevail, Congress will be unable, as an institution, to check presidential ambition and defend its lawmaking prerogative.
Once such precedent is established, damage to the constitutional architecture is permanent. The next president of a different party will face similar pressures and undo all the previous actions. He will initiate a new round of unilateral lawmaking, satisfying his own political base. The law will fluctuate back and forth, and our legislature will become little more than a rubber stamp for a single elected individual, which is not how representative government is supposed to work.