American government has eroded the separation of powers and lost its commitment to liberal ideals

How the United States Government Lost Its Liberalism

by Kim R. Holmes

Through executive orders and judicial overreach, American government has eroded the separation of powers and lost its commitment to liberal ideals. (The second in a two-part series.)

In yesterday's essay, I argued that American liberalism is becoming increasingly illiberal. By that, I mean that American liberals are becomingmore inclined to use coercion to deny some citizens their freedom of expression and conscience and to treat them as unequal before the law.

Yesterday, I focused on illiberalism’s cultural aspects. Today, I describe its politics, analyzing the ways in which government and the courts are being used to shut down debate and coerce people into conformity.

So what are government’s illiberal practices?

They are prominent in the news. The current administration is stretching, even ignoring, legal boundaries. Federal agencies target their investigations on ideological opponents of the party in power, or leak sensitive information to their allies outside government. Federal and state governments refuse to enforce laws with which those in power disagree. Judges regularly break new ground to overturn referenda and laws with which they differ. Federal agencies toy with expansive new regulations, such as the Federal Communications Commission’s idea to regulate the “content” of news outlets. And some members of Congress want to amend the First Amendment to restrict freedom of speech.

Equally troubling, the federal government increasingly ignores the separation of powers established in the Constitution. The executive branch and the courts bypass Congress, as when the Obama administration announced it would not defend the Defense of Marriage Act before the Supreme Court ruled on the matter. By openly asserting a right to use executive actions to achieve policy objectives unattainable through legislation, Barack Obama is expanding executive authority beyond merely “executing” the laws or even interpreting them. He is effectively creating new laws through executive fiat.

Legislating by Executive Fiat

A president’s assertion of executive authority is not new. Chief executives have been raising constitutional questions about legislation ever since President James Monroe issued the first “signing statement” in 1821. Moreover, the Supreme Court has repeatedly ruled that “interpreting a law enacted by Congress to implement the legislative mandate is the very essence of ‘execution’ of the law.” Presidents have long issued executive orders in order to execute the law and to exercise the president’s prerogatives to conduct foreign policy, protect national security, and fulfill specific obligations mandated by the Constitution.

Nevertheless, it is one thing for a president to use the constitutional prerogatives of the executive to interpret how to implement a law or to exercise legitimate authority. Using that power to cherry-pick which laws to enforce is another thing altogether. Past presidents regularly used signing statements to preserve the constitutional privileges of the president (such as those in the Recommendations Clause of the Constitution) and to protect the confidentiality of national security information. But they did not routinely use executive authority as an excuse to override specific legislation or as a pretext not to enforce provisions of laws with which they disagreed as a matter of policy.

For example, George W. Bush used executive orders to amend the order of succession in his agencies and to reestablish commissions. The novelty of President Obama’s approach is, as he stated publicly, that he would use executive orders, actions, and other less formal means to bypass Congress. In 2011, he announced his plan to reduce college costs, saying, “I intend to do everything in my power right now to act . . . with or without Congress. We can’t wait for Congress to do its job. So where they won’t act, I will.” In 2012, while the contentious Dream Act was still in play in Congress, President Obama announced that the Department of Homeland Security, through memorandum, would begin implementing a provision in that bill—effectively expropriating a constitutional right of the legislative branch.

Lawyers can sort out whether such acts are strictly constitutional or not, but one thing is clear: this expansion of executive authority goes beyond any concern for protecting the constitutional privileges of the office. It is, as Obama himself explained, driven instead by the desire to achieve by executive fiat what cannot be obtained through the regular legislative process. This is dangerous. At best, it represents a cavalier attitude about the Constitution and the law. At worst, it could be an abuse of power not seen since the days of Richard Nixon.

Manufacturing Rights ....

How American Liberalism became Illiberal ....

Where Liberalism Stands Today ....

........

Read more: www.thepublicdiscourse.com