“The legislature makes, the executive executes, and the judiciary construes the law; but… the precise boundary of this power is a subject of delicate and difficult inquiry.” –Chief Justice John Marshall, 1825
Congress refuses to vote on President Obama’s nominees. The president issues executive orders where Congressional action might be the normal course of policymaking.
Now the president's duty to carry out the law has become another flashpoint for partisan rancor.
Speaker of the House John Boehner has upped the ante in this political battle, announcing plans to sue President Obama for willfully refusing to enforce laws as Congress passed them.
"He shall take Care that the Laws be faithfully executed." – Constitution, Article II, Section 3
A House resolution would authorize the speaker to file suit “to seek appropriate ancillary relief… regarding the failure of the President, the head of any department or agency, or any other officer or employee of the United States, to act in a manner consistent with that official’s duties under the Constitution and laws of the United States with respect to implementation” of the Affordable Care Act.
"I get to look at the Constitution once in a while,” said Boehner. “The Constitution makes it clear that Congress writes the law and the President takes the oath of office to faithfully discharge the laws that are on the books."
Obama responded, "They have plans to sue me for taking executive actions that are within my authority — while they do nothing."
Creating the Separation of Powers
The founding generation was deeply concerned about the dangers of placing too much authority in one part of the government. The Constitution was drawn up largely to create a more effective executive branch of government than existed under the Articles of Confederation.
Many pointed to the French political thinker Montesquieu, who wrote about the importance of dividing power in The Spirit of the Laws.
In a passage that influenced many founders, Montesquieu wrote, “Miserable indeed would be the case were the same man, or the same body… to exercise those three powers, that of enacting laws, that of executing the public resolutions, and that of judging crimes or differences of individuals.”
During the Constitutional Convention in 1787 James Wilson of Pennsylvania argued forcefully for the importance of a powerful executive, calling the position “the accountable magistrate of a free and great people.”
But not everyone agreed. Roger Sherman of Connecticut believed the president should be the servant of Congress, not its equal. An independent executive would be “the very essence of tyranny.” The founders were very wary of granting the president too much power, since they remembered all too well a Revolution fought against a king they considered a tyrant.
An “imperial presidency”?
Objections to an “imperial presidency” have most often come to the fore over foreign policy. In 1793, for example, some in Congress strenuously objected to Washington’s proclamation of neutrality, which they thought violated provisions of the 1778 treaty between France and the United States. Between 1798 and 1800, Republicans protested an undeclared war with France as an example of presidential overreach.
The courts have historically been reluctant to get in the middle of perceived political squabbles, even when it appears to be an issue of Constitutional power.
Will this time be different? It’s too early to tell.