Monday, December 28, 2009

Executive Discretion

by Richard Crews
Because of the partisan paralysis of the legislature--which is a polite way of saying the misrepresentations and obstructionism by the Republicans, particularly in the Senate--the executive branch has had to assume expanded power in order to get the work of governing the country done. For example, in the absence of responsible climate legislation, the Environmental Protection Agency has declared that carbon dioxide is a health hazard and therefore falls under its jurisdiction--no new legislation is needed to set pollution standards for internal combustion vehicles (cars and trucks) and smokestack industries.

The executive branch--that is, the president--actually has enormous independent power. As President Andrew Jackson once said after the Supreme Court had ruled against his abusing the civil rights and treaties of Native Americans, "Marshall [the Chief Justice] has made his decision--now let him enforce it!"

Obama has moved furtively in many areas; he has responsibly courted legislative guidance and support. But failing any responsible checks and balances of the executive branch by the legislative branch, Obama actually has considerable flexibility and prerogatives in implementing legislation that he has in hand and that gets passed through to him.

It will be very interesting, for example, to see what the elaborate and complex health-care reform bill looks like when the president is done with "signing statements" and other implementation procedures. Happily these will be hard to follow--they will largely be done away from the glare of partisan political rhetoric. (Even the invaluable intrusion of investigative journalism has been greatly reduced in recent years by the shift from paper to electronic news.)

The partisan paralysis and excessive special-interest lobbying power in Washington have to be fixed. But fortunately the federal government is structured so that it can function (as a defacto benevolent dictatorship) in the meantime. It is not a perfect solution--it certainly is not "the American way"--but I guess that in the absence of responsible "loyal opposition," it will have to do. We are fortunate to have Obama rather than a Jackson (or a Bush) in the White House.