In his 1973 classic, The Imperial Presidency, Pulitzer Prize winning historian Arthur Schlesinger popularized the notion that Presidents–particularly Richard Nixon at the time–were wielding power beyond Constitutional limits.
This arrogance of power usurps the other two equal branches, upsetting the framers’ careful balance and creating what Schlesinger called "a radical transformation of the traditional polity."
Unfortunately, since Schlesinger put forth the idea almost 40 years ago, the condition has only worsened.
The tactic most used by Presidents to try to reach beyond their Constitutional restraints is the use of "signing statements." These are essentially orders issued by the President when he signs a bill into law as to how the law should be enforced.
Presidents have used them–generally sparingly–for 200 years to declare portions of a law unconstitutional and, thus, unenforceable. The number of signing statements exploded under President George W. Bush, who issued 161.
When Barack Obama took office, he pledged to act with "caution and restraint" on signing statements. He had issued just 19 as of the first of the year.
But that does not mean Mr. Obama has brought the Presidency back into balance with the other two branches–far from it. Rather, President Obama has simply chosen portions of existing laws that his administration will not enforce.
Constitutional scholar Jonathan Turley says those include federal laws that bar betting across state lines (thus essentially legalizing Internet gambling), and DOMA, the Defense of Marriage Act.
The latest example of Presidential overreach is the decision not to deport illegal immigrants under 30 who came to this country before they were 16, have been here at least five years, and have met certain requirements.
There is merit to the argument by the President and others who say these people should be allowed to stay in the country, and that is a provision of the DREAM Act. But so far, that legislation has failed to pass Congress. It cleared the House, but fell short in the Senate because of a bipartisan filibuster.
That’s a Congressional prerogative. The President’s options include using his considerable bully pulpit to bring pressure on lawmakers to pass the bill, or work behind the scenes on Capitol Hill to try and win votes.
Instead, the Administration simply announced on a recent Friday afternoon a decision to ignore the will of the people’s elected representatives.
"The Administration is implementing a categorical policy not to enforce a federal law," Turley wrote in Politico. "Congress has refused to pass such laws and this is an obvious effort to circumvent Congress–something of a signature for this Administration."
The Founding Fathers, in their wisdom, put in place checks and balances to help maintain the co-equal branches of government. The hope was to avoid tyranny, while also encouraging collaboration and cooperation.
As Turley wrote, this provides our government with a certain amount of stability.
In recent times, however, particularly with the last two Administrations, there has been a greater tendency to act unilaterally. The shift has become so common that with President Obama’s actions on the immigration issue, the debate largely evaporated after a few days.
Schlesinger’s predicted radical transformation of traditional governance in this country is happening as Presidents find ways to justify a means to an end. Each of these individual acts by a President might please a particular constituent group, but they run afoul of the largest group of all–the entirety of the American populace who put their faith in a system of government with shared, distinct and balanced powers.