Imperfect Union: The Constitution Didn't Foresee Divided Government

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is "American Justice 2014: Nine Clashing Visions on the Supreme Court."

“The president is completely ignoring the will of the American voters, who turned out on Election Day and overwhelmingly elected people who wanted to change the direction of the country,” Senator John Barrasso of Wyoming, chairman of the Senate Republican Policy Committee, complained Thursday to The New York Times.

Barrasso is right. President Obama is ignoring “the will” of those who turned out to vote this month. In a different system, he would have already moved out of the White House, replaced by a leader chosen by the Republican majorities in Congress. (For that matter, he would have been gone after his party took, in his words, a “shellacking” in 2010.)

Instead, however, he is president for two more years. When the voters were directly asked their “will” on his tenure two years ago, they handed him a title deed to the White House good, under our Constitution, until January 2017. With that in hand, he has made clear that he plans to go forward with executive actions to further his agenda.

Already, since the election, he has signed an agreement with China setting more strenuous goals for reducing carbon emissions. He has promised to issue soon an executive order providing broader protections against deportation for undocumented immigrants—in effect using executive authority to impose a limited form of the comprehensive immigration reform the Senate passed but the House refused to enact. Signals from the White House suggest that other executive initiatives may be in the works.

Is this an outrage, a defiance of democratic legitimacy? Is it a welcome sign of courageous presidential leadership? How does the coming duel between legislative and executive branch fit into the design of our Constitution? ...




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