January 28 2014

SOTU: What Will He Say about Pen Power?

Charlotte Hays

While we probably already can guess what President Obama will say tonight about income inequality (which has grown markedly since he took office), a more unpredictable topic for tonight may what the president says about his intention to govern, wherever possible, unilaterally by pen and phone.

How far will he go? How far can he go?

Several conservative pundits have pooh poohed the president’s boast that he can govern by pen and phone, arguing that there is little he can do that way. Constitutionally, he is limited. But the president can do a great deal of harm if he goes too far. The very last thing the country needs after five years of vitriol, class warfare, and name calling is a dispute about constitutional authority.

So what I’ll be listening for tonight is an indication as to how far he believes he can go with this pen and phone thing. Charles C.W. Cooke, relying on rumors that the president will make claims tonight for unilateral powers, writes:

There is a solid reason why previous State of the Union speeches have not featured declarations of “universal presidential authority,” and that is that such declarations are rotten, unseemly, and insulting to the republican ideal.

It is regrettable enough on its own that the head of the executive branch elects each year to play the starring role in an ersatz performance of the British Speech from the Throne without that executive’s adding insult to injury and using the opportunity to explain to his hosts how he intends to circumvent their power.

The president of the United States, it should be restated over and over and over again, is not the country’s elected monarch but a cog in a complicated machine whose moving parts include the House and the Senate and that, with a few limited exceptions, cannot legally work without them. Would that this one recognized it.

Patrice has an excellent post up today on the beginning of governance by pen—i.e., the president’s unilaterally raising the minimum wage for government contractors. Rep. Steve King already has called this act a “constitutional violation.” Andrew Johnson observes on The Corner:

King called the action a “constitutional violation” since the president does not have the authority to ignore or change laws without congressional approval. He worried that the president’s approach could set a precedent unseen before in American history.

“This threat that the president is going to run the government with an ink pen and executive orders — we’ve never had a president with that level of audacity and that level of contempt for his own oath of office,” he said.

The President doesn’t really understand what increases income inequality (hint: his policies), but let’s hope that as a constitutional expert he’ll know where to draw the line on unilateral executive actions.

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