#123: The Significance of Executive Orders

December 5, 2014

The media, including some very astute commentators, have been framing Obama’s recent executive action on illegal aliens as being a violation of the “separation of powers.” What they mean by this is that the writers of the U.S. Constitution were intent on balancing the powers of Congress and the Executive (the Presidency) so that neither was in a position to encroach on the rights of individual citizens. The people of the American colonies were justly gun shy of governmental powers, having just fought a blistering war against the British monarchy. But while this description of our current crisis is not wrong, it also fails to focus our attention on what really lies at the heart of the conflict. We can only see this if we become aware of what the contending forces represented to the 18th century American population.

Now, it is true that this population was far from homogeneous. There were the British, the Dutch, the Spanish, the French, and yet other smaller groups. And it is certainly true that not all of these wanted to sever ties with Europe, but there were certain common prevalent assumptions, at least once the war of revolution had been won. The most notable that we tend to forget is that the citizens of each of the states tended to think of their states as mostly autonomous polities much closer to nations than to our modern American states. We can see this in the acrimonious constitutional debate and more specifically in the content of the Federalist. This series of newspaper articles was written to persuade the people of the diverse states that their interests would be best served by a union of which they were extremely suspicious. They were already linked by the Articles of Confederation, a very limited form of connection, and they were being asked to take a further step in the direction of allowing external control. This was far from a sure thing at the time, it was a very difficult sell. The Constitution, therefore, was written with the single minded goal of assuring the population that a centralized take-over could not take place, and the instrument in the document standing between the feared and despised central authority was the Congress.

Thus, my point is that a contemporary power conflict between the President and Congress is a precise enactment of the revolutionaries’ worst nightmare. Calling it an issue in the Constitution-defined relation of the Executive to Congress is not false, but it leaves the casual hearer with the idea that this is merely a “technical” institutional question. Far from this, the Obama power grab is exactly what the Constitution was intended to avert and Obama is playing the role of George III.