Analysis: Obama’s New Imperial Presidency

Ruling by fiat has always been the hallmark of monarchs and despots. Ruling by executive order is virtually the same thing as ruling by fiat, but even fiat rule becomes relatively acceptable, when the alternative is no rule at all.

When the results were tabulated after the 2014 election, and President Barack Obama found himself facing his last two years in office as minority president facing a hostile Congress, he also faced a decision about how he will conduct the remainder of his presidency. The choice he faced was very stark: reconciliation or confrontation.

With this Republican Congress, with the bit in their teeth, reconciliation would be tantamount to concession, and Mr. Obama is not ready to do that. On the contrary,  Mr. Obama signaled his decision in yesterday’s announcement that he will employ his executive powers to reshape U.S. immigration policy in the absence of any Congressional movement on immigration issues over the past six years…essentially daring Congress to act by overriding his executive actions with immigration reform legislation.

For the past four years, since the 2010 election, Republicans in the United States House of Representatives have held an unbreakable stranglehold over President Obama’s administration, thwarting every legislative agenda the Democratic Senate proposed, and exercising virtual veto power over the nation’s governance. Now, with Republicans in control of both houses of Congress, the shoe is on the other foot, with the Democratic president signaling that he is poised to veto legislation reflecting the Republican party’s agenda for the remaining two years of his presidency.

Challenging the Republican Congress to pass legislation overriding his executive orders, as he did in his address to the nation on Thursday, was a not so veiled warning that he would exercise his veto powers to control the Republican Congress. By proposing to use his executive powers to create a path to legal residency for four million illegal immigrants who are the parents of children who were born in the United States and are in fact U.S. citizens, Mr. Obama has drawn a line in the sand that the Republicans cannot cross because they do not have the votes to do so. Senate Republicans lack the votes necessary to override a Presidential veto, making moot any attempts by the Republicans to overturn the President’s executive decisions. Senate Republicans also lack the votes necessary to approve a Bill of Impeachment from the House of Representatives seeking to remove Mr. Obama from the Oval Office.

This is why the shoe is suddenly on the other foot: now, it is the president, rather than House Republicans, who will determine the course of the country for the next two years through the use of the president’s veto powers.

It is a virtual certainty that the Republican House of Representatives will send a bill of impeachment to the Republican Senate, once the new Congress is seated in January, but the fact remains that the Republican Congress will be an impotent one for the next two years.

Ruling by fiat is nothing new in American politics. Presidents beginning with George Washington have done it, with Washington’s skillful, bloodless suppression of the Whiskey Rebellion in 1794 being the first such case. There was nothing in the newly written Constitution that gave the president the right to conduct police actions in the name of the nation, but there was nothing in the Constitution  that prohibited Washington from doing so, personally riding at the head of an army consisting of 13,000 nationalized militiamen to peacefully disperse the rebels. No shots were fired on that occasion.

In his turn, another American “Hero on Horseback” President, Andrew Jackson, ignored rulings from John Marshall’s Supreme Court that blocked attempts to remove the Indian nations from Georgia, for which he was credited for the probably apocryphal comment, “John Marshall has made his decision, now let him enforce it.” Abraham Lincoln, in his turn, suspended habeas corpus, ignored a Supreme Court ruling that his action was unconstitutional, and continued to rule by executive action for the duration of his presidency.

In 1942, Franklin D. Roosevelt ordered the internment of American citizens of Japanese descent, an action that was declared discriminatory by the U.S. Congress some forty years after the fact in a bill that awarded $20,000 to each illegally interred Japanese American citizen. In 1957, Dwight David Eisenhower sent federal troops to Little Rock, AK, to enforce the Civil Rights Act and force the integration of public schools in that city.  In both cases, these executive orders were in direct violation of the Posse Comitatus Act of 1878, which prohibits the use of federal troops against or within the separate states to impose federal law. (The act is often misinterpreted to mean that the federal government was prohibited from using federal troops to impose state laws.)

The table is now set for another round of increasingly vicious reprisals between the executive, legislative and judicial branches of the government. As a lame duck president with a hostile Congress opposing him, the only way Mr. Obama will be able to get anything done will be through executive orders. The Republican Congress will attempt to set aside President Obama’s executive rulings, and impose new laws based on their philosophy of government, but they will be thwarted by Obama’s veto power. The Republican-controlled Supreme Court will be asked to declare Obama’s actions unconstitutional but, as Andrew Jackson pointed out, the Supreme Court has no troops with which to enforce its decisions….and neither does the Congress of the United States.

If the past four years of legislative gridlock were a global embarrassment to the American nation, the next two years will probably add a lot of insult to that injury because there are no common grounds left to which the disputing parties could repair to reach a compromise.

The Republican party, mindful of its minority status within the national electorate, is already directing its attention to the 2016 general election but, even if the Republicans gain the White House in 2016, it is extremely unlikely that the Republicans will retain control of the Senate. In 2014, there were 21 Democratic Senate seats up for grabs, against 15 Republican seats. In 2016, there will be at least 24 Republican seats at risk, with only 10 Democratic seats being contested.

The Democratic lineup for 2016, includes heavy hitters from the strength of the party’s leadership, like Barbara Boxer (CA), Richard Blumenfeld (CT), Barbara Mikulski (MD), Harry Reid (NV), Chuck Schumer (NY), Ron Wyden ()OR), Patrick Leahy (VT) and Patty Murray (WA), all of whom will win in a walk if they run. With that lineup out front, the Democrats will have plenty of breathing room…and campaign cash…to defend their weaker seats, and pick up the six Republican seats out of the 24 seats needed to regain the Senate. By 2020, some experts believe the Democratic party will have a permanent stranglehold over the Senate, as the Republican  party now has over the House of Representatives.

The bad news for the American people, regardless of which party – if any – they favor is that the next occupant in the White House will probably be facing exactly the same gridlock situation as the current resident of the Oval Office. If that occupant is Republican, with a Democratic Senate blocking Republican initiatives, there will be no significant legislation for the Republican president to sign. If the next occupant is a Democrat, he or she will still face off against a recalcitrant Republican House of Representatives and a fingernail thick grip on the Senate, if that.