Recent statements by the Obama administration that the president may be considering his own policy of picking and choosing among provisions of laws passed by Congress, similar in principle to the previous Bush administration, is disturbing. Having spent a lifetime studying the U.S. Constitution, I can find no provision in it that grants the chief executive this power.
Article I, section 1, clearly gives to Congress the sole authority to enact legislation (“All legislative Powers herein granted shall be vested in a Congress of the United States…”). Section 7 of the same Article gives the president the power to approve or veto laws passed by Congress. But nowhere in the Constitution is the president given the authority to decide which laws to execute and which not to.
As Congress cannot intrude on the president’s executive authority, except to disapprove it by law, so the president cannot legislate selectively. Partisan Constitutional scholars may write learned memoranda pointing out instances, usually in time of war, where presidents have acted without authority or have by-passed or side-stepped legislative mandates. But might does not make right. And repetition of unconstitutional actions does not make them more Constitutional.
If President Obama proceeds down this path, out of his own sense of expediency or the urging of frustrated or power-hungry advisors, he will be adding precedent for his successors to follow, successors who may not be as scrupulous as he. The late Arthur Schlesinger, Jr., wrote “The Imperial Presidency” in 1974, at the close of the Nixon administration. He wrote: “When the constitutional balance [between Congress and President] is upset in favor of presidential power and at the expense of presidential accountability, the presidency can be said to become imperial.”
Partisans repeatedly wish to make exceptions to strict Constitutional construction in favor of their own favored president. But the Constitution is not a document meant for expediency. It survives only so long as its terms are honored and obeyed regardless of president, party, or circumstances.