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The Flimsy Justification for Obama’s Usurping of Legislative Power

4:51 PM, Jun 13, 2014 • By JEFFREY H. ANDERSON
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If there is any realm of policy that the American Founders were most firmly committed to having be decided by the most representative branch — the Congress — it was presumably the realm of taxation.  Those who wrote the Constitution were not content even to let the Senate initiate tax policy.  Instead, Article I, Section 7 of the Constitution specifies, “All Bills for raising Revenue shall originate in the House of Representatives.” 

President Obama’s allies, however, are now encouraging him to take matters into his own hands even in this realm.  In the New York Times, Victor Fleischer claims, “President Obama could change the tax treatment of carried interest with a phone call to the Treasury Department.” 

But what is particularly appalling is how flimsy the proposed justification is for having Obama usurp legislative power — something he has arguably done more serially and brazenly than any prior president. 

Fleischer writes:

“The current Republican majority in the House has shown little interest in the [carried interest] issue, with the almost singular exception of Dave Camp, the departing chairman of the Ways and Means committee, who would have closed the loophole as part of a broader tax overhaul.  Every year, the Obama administration proposes a budget that would close the loophole; every year, Congress fails to act.  The carried interest issue is, in other words…”

Decided?  Settled?  Resolved?

No, “gridlocked.”

Fleischer then approvingly quotes NYU law professor Daniel Shaviro, who says that “when the legislative process is as broken as it has become today…it’s simply inevitable that administrations will…be more willing to advance their policy views in controversial areas through the unilateral exercise of regulatory authority.” 

In truth, when Obama proposes policies that are subsequently rejected by the people’s representatives in Congress, it doesn’t mean that Congress is “broken” or even necessarily “gridlocked.”  It means that Obama is advancing policies that are political losers.  And wanting to advance political losers is no excuse for usurping legislative power.  

The Founders were well aware that the legislative process could at times frustrate worthy designs.  As Alexander Hamilton wrote in Federalist 70, “In the legislature…[the] differences of opinion, and the jarring of parties…though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection and serve to check excesses in the majority.” 

They also serve to check the excesses of one man.

The crux of the issue is that Obama, following the lead of prior progressives, has very little respect for our separation of powers; our division of powers among federal, state, and local authorities; or our constitutional forms in general.  He will continue to call a duly elected Congress that won’t pass his unpopular agenda broken, gridlocked, and dysfunctional and will continue to try to evade the boundaries of the Constitution through use of his phone and his pen.

The only way for Republicans and Constitution-loving Democrats to stop him is to be every bit as committed to upholding and sustaining the Constitution and laws as Obama is to thwarting and circumventing them.  That hasn’t yet happened.

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