Obama's pen - "kinda cool"?

Glenn Greenwald, a big critic of the GOP (and the "establishment" in general) is concerned about Obama's plans:

What fueled the abuses of the last eight years as much as anything else was the ongoing (and severely accelerated) abdication of power by Congress to a bordering-on-omnipotent presidency. It's critically important that an Obama administration reverse the substantive transgressions of the Bush era -- closing Guantanamo, ending torture and rendition, restoring habeas corpus, rejuvenating surveillance oversight, withdrawing from Iraq, applying the rule of law to political leaders past and present -- but it's at least as important that this be accomplished in the right way, that our constitutional framework be restored. That means restricting the President's role to what the Constitution prescribes and having Congress fulfill its assigned duties and perform its core functions.

This is anything but an abstract concern. Central to the design of the republic is the power of the citizenry to remove all members of the House and 1/3 of the Senate every two years. That's the central mechanism by which the people, through their representatives in Congress, keep the Government responsive. But none of that matters -- it's all just illusory -- if Congress has no real power and exists as little more than a passive and obedient vassal of the President. We shouldn't want that arrangement even if, at a given moment, we are lucky enough to have a magnanimous President who makes good decisions and wants to do good things with his centralized, unchecked and imbalanced power.

The Lieberman controversy merely symbolizes how entrenched this problem has become. Just consider reports this week that Obama intends to use unilaterally issued, unchecked Executive Orders, rather than acts of Congress, to dictate outcomes on a whole range of politically controversial policy debates that are so plainly the province of the Congress to legislate -- from restrictions on stem-cell research funding to regulations governing aid to foreign family planning groups to oil drilling. Here's what Obama's transition chief, John Podesta, said about that:
"There's a lot that the president can do using his executive authority without waiting for congressional action, and I think we'll see the president do that. I think that he feels like he has a real mandate for change. We need to get off the course that the Bush administration has set."

Podesta's infatuation with the power of executive orders recalls the infamous comment made by Clinton aide Paul Begala regarding the robust use of executive orders by the Clinton administration to make policy: "Stroke of the pen. Law of the land. Kinda cool."

That isn't actually how things are supposed to work. The Constitution doesn't vest the President with the power to make laws with the "stroke of the pen," and it's not "kinda cool" that we've allowed it to happen. It's actually quite dangerous and anti-democratic, as James Madison warned in Federalist No. 47:
"The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny."

As Madison explained in that paper, it was only because the Constitution separated those powers among the branches -- with the legislative power (the power to make laws) assigned exclusively to Congress and the executive power (the power to execute those laws) assigned to the President -- was Madison convinced that the presidency created by the Constitution, deprived of lawmaking power, would pose no threat to republican liberty.

Let's be clear: Obama didn't create these erosions and he hasn't even been inaugurated yet, so it's irrational to begin blaming him for this state of affairs. Many of the policies he is contemplating changing via Executive Order were ones that were improperly implemented by Executive Order in the first place. And, principally, it's the responsibility of Congress to defend its constitutionally assigned powers, not of Obama to refrain from encroaching on them.

Nonetheless, we have strayed indescribably far from the system of Government we were supposed to have. That we trust a particular President and believe he'll do good things, achieve good outcomes, with excessive power is no reason to be happy with that state of affairs. As is often the case, Democratic Congressional leaders seem far more content to submit to power than to exercise it. But we shouldn't treat the framework created by the Constitution as optional or waivable when it seems there are good things to be gained by doing so. Podesta is right that "we need to get off the course that the Bush administration has set." That should include, first and foremost, respect for the roles assigned to the various branches by the Constitution.