During my first year at the University of Chicago Law School, while wading through painfully obscure court decisions from hundreds of year ago, I learned that under English Common Law individuals who had no ownership rights in a piece of property could establish “squatters rights” by taking exclusive possession of the property and staying there for a long period of time. The courts of those days reasoned, correctly, that if a rightful property owner did not seek to exercise and enforce his rights within a reasonable amount of time, then he forfeited those rights to the squatter. The bottom line of this legal doctrine is that if you don’t stand up for your rights then you deserve to lose them.
During his administration, President Obama has become a Constitutional squatter, aggressively and unabashedly taking possession of legislative powers by refusing to enforce laws he disagrees with, by legislating through executive fiat and by rewriting laws through agency regulations. Congressional Republicans have been largely ineffective in stopping Obama’s power grab, primarily because Senate Democrats seem to be perfectly comfortable with the situation. For example, when President Obama announced this week that he would tackle immigration reform “on his own”, Senate Majority Whip Dick Durbin (D-Ill.) approved, saying “The President will borrow the power that is needed to solve the problems of immigration and shouldn’t be sued as a result of it.”
Since when does the president get to “borrow” Congress’ constitutional authority? Once borrowed, when precisely does this president intend to “return” such authority to Congress? The last time a senatorial body acquiesced such power to the executive was when Julius Caesar took full control of the Roman Empire. He never gave the power back.
We are in a full-blown constitutional crisis. We cannot afford to have a president who both writes and executes the laws. We’re not Venezuela. Congress and the American people should forcefully and unequivocally insist on the separation of powers envisioned by our founders, evicting this president and future presidents from legislative ground. This can be done in three ways.
First, we must elect legislators who will jealously guard Congress’ constitutionally granted powers. We need senators and congressmen who will stand up to presidential overreaches, especially when such overreaches come from members of their own party. Sen. Robert Byrd, a Democrat, was a fierce defender of the separation of powers. I have no doubt that were Sen. Byrd still alive, he would be an unabashed, outspoken critic of President Obama’s intrusions into legislative affairs.
Second, Congress must stop voluntarily outsourcing its legislative authority. Over the years, instead of safeguarding its constitutional right to legislative powers, Congress has delegated much of its authority to the executive branch, either by explicitly granting rulemaking authority to federal bureaucrats or by passing poorly constructed legislation that is open to broad interpretation. If Congressional leaders are intent upon reigning in the executive branch, they must start by drafting, reading, debating and thoroughly vetting every piece of legislation before they vote on it. Over time, equipped with clearly worded, tightly focused bills, Congress can slowly but surely reassert its legislative authority.
Finally, when one chamber of Congress refuses to stand up for legislative rights, it is entirely appropriate for the other chamber of Congress to seek redress through the courts. Given the several recent 9-0 Supreme Court decisions invalidating multiple actions of the Obama administration, this might be the most effective course for House Republicans to take to protect Congress’ legislative powers. This week, President Obama taunted Congress to sue him. I think they should, on this point, give him what he wants.
Dan Liljenquist is a former state senator and U.S. Senate candidate.