Last week, the Senate Judiciary Committee spent a week delving into most aspects of Judge Sonia Sotomayor's background, judicial opinions and life story. The questions ranged from social issues to international affairs to racial preferences and overall judicial philosophy.
However, nothing during the "Sotomarathon" even touched upon one of the most fundamental constitutional issues and a looming practical problem: the limits of presidential power in a three-branch federal system.
No one should expect a pliant Congress with huge Democratic majorities to consider questions about appropriate constitutional limits of presidential power. Any discussion of this type would fly in the face of this Congress' lack of appetite to check this president's outsized ambitions. (Of course, this attitude contrasts sharply with the attitude of this same majority during the last presidency.) This Congress resolutely refuses to even read the bills they pass after the table has been set by the Chief Executive, so we can't expect much practical scrutiny of presidential actions. That abandonment of Congress' constitutional role leaves the judiciary, particularly the Supreme Court, as the only institution able to bring some constitutional discipline to the actions of the Obama Administration.
There have been many instances throughout our history where the Supreme Court was forced to strike down untrammeled Executive overreach. The Court nullified President Truman's seizure of US steel mills during the Korean War. It decisively limited the doctrine of Executive Privilege during Watergate by forcing President Nixon to turn over the infamous White House tapes.
In our time, where the Executive is arrogating and exercising an unprecedented amount of power in the name of national emergency, an important question must be: Under what circumstances would the Supreme Court be justified in curbing unilateral "ultra vires" actions by a president?
The question was explored during the last administration in the civil liberties context because of the controversies over the status and treatment of so-called "illegal combatants." But with the election of a president who wants to do "good" things with presidential power, congressional leaders and much of the fourth estate aren't nearly as interested in this important matter.
Today, with the Obama Administration asserting unilateral, unique and sweeping powers in a variety of areas, the Court may soon be called upon to opine on the limits of presidential authority. Believers in individual freedom can only say: the sooner the better.
President Obama claims executive authority to run (not just fund) America's domestic car industry. He is now effectively in charge of the daily decisions of General Motors, from the kinds of cars they make to the mileage they get. Even more daring, the Administration personally brokered the reorganization plan that saw the company through bankruptcy. Among its controversial aspects, the plan included the dilution of the contractual rights of GM bondholders in favor of giving a greater stake in the new company to the United Auto Workers, who were major supporters of Obama's presidential campaign. When the creditors objected, they were taken to task in a public way by the president himself. The bankruptcy court approved the plan because the government argued that the ongoing economic emergency justified this unprecedented action. This is the same justification that was used by Congress to enact the TARP bill last year or the $787 billion stimulus bill in February, both of which have failed in their central purpose. Where exactly in the Constitution, or any statute enacted by Congress, is the president granted the authority to reorganize a private company or intervene in an ongoing bankruptcy proceeding?
Remember when Eisenhower's Secretary of Defense (and former GM CEO) Charles Wilson said, "What's good for GM is good for America?" We better hope he was right. GM is for all practical purposes a subsidiary of the Treasury Department. The important decisions are made, not by the GM President, but by the Automobile Czar and the Secretary of the Treasury, both were appointed by the President and exercise presidential authority ostensibly derived from the Constitution. What statutory or constitutional authority authorizes the President to take over, and run, any private enterprise, including the automobile business?
Or, consider the more than thirty "czars" that the president has appointed to coordinate important aspects of administration policy. None are confirmed by the Senate and are thus shielded by executive authority from the proper constitution oversight role of Congress, a point that Senator Robert Byrd (D-WVa) was the first to make. Virtually none are well known by the American people, yet they have been delegated huge powers by the president to "coordinate" large areas of national policy. Should "Czar" Carol Browner, who is not confirmed by the Senate, be delegated the task of running environmental policy at the expense of officials such as the EPA Administrator, that have the real statutory authority? Should "Czar" Nancy Ann DeParle be able to dictate policy to congressionally confirmed HHS Secretary Kathleen Sebelius on health care matters? Can Congress question these officials or ask them to testify under oath? Where is their accountability to anyone beside the president?
As Senator Byrd stated in a letter to the president, "The accumulation of power by White House staff can threaten the Constitutional system of checks and balances."
The last time a president attempted this kind of arrogation of authority, President Franklin Roosevelt's major programs were stuck down by the Supreme Court, until a second term and Court retirements enabled Roosevelt to shape the Court, and its decisions, more to his liking. Let's hope that this Supreme Court will not hesitate to keep our constitutional system in balance by striking down any actions by the president that are not consistent with Constitutional principles.
The writer is Chairman of GOPAC, the center for training and electing the next generation of Republican leaders.
A longtime Republican political activist, Frank Donatelli is executive vice president and director of federal public affairs for McGuireWoods Consulting LLC, and serves as counsel with McGuireWoods LLP. During the 2008 presidential campaign, Sen. John McCain tapped Frank to serve as deputy chairman of the Republican National Committee, where he coordinated the RNC’s fundraising and organizing activities directly with the McCain-Palin presidential campaign. Frank is the former chairman of GOPAC, an organization dedicated to educating and electing a new generation of Republican leaders. He previously served as Political Director for President Ronald Reagan.