September 01, 2014

Gridlock, Executive Orders, and Separation of Powers

Warren Belmar

Given the decision of the voters in the 2012 elections to elect a Democratic president, a Democratic majority in the Senate, and a Republican majority in the House of Representatives, it has not been surprising that numerous contentious and challenging legislative issues have fallen victim to legislative gridlock. Now, as the November 2014 elections approach, speculation abounds in Washington as to the upcoming changes in the composition of the Senate and the House of Representatives and how those changes will impact the ability of the Obama Administration to work with the next Congress. Regardless of the election results, it is highly likely that gridlock will continue and will prompt unilateral executive action.

Two of the most vexing legislative issues that Congress has thus far been unable to resolve are proposed changes to our existing immigration laws and the Affordable Care Act as written, as well as implementation challenges for the latter. In the case of the Affordable Care Act, President Obama has chosen to overcome legislative gridlock by use of executive orders interpreting or amending various statutory provisions. Not surprisingly, judicial challenges to his actions have been filed and are working their way through the courts. Similarly, President Obama has recently promised to issue an executive order after the November elections to overcome legislative gridlock on immigration issues. In both instances, it ultimately will be the responsibility of the federal judiciary to determine whether the executive orders are consistent with the laws as written by Congress or whether they run afoul of the boundaries between the executive and legislative branches inherent in the Constitution’s separation of powers framework.

While gridlock is not a condition to be desired, it is important to remember that our Constitution’s system of separation of powers is designed to allow for frustration from time to time as a result of the various checks and balances it places on the operation of legislative, executive, and judicial power. For example, while only Congress can pass a bill, the president can veto it. And, if signed into law by the president, the judiciary could subsequently declare the law to be unconstitutional. For this system of government to work, it is incumbent upon the president and Congress to acknowledge the rule of law and to respect the limitations placed upon the powers conferred upon them by the Constitution as determined from time to time by the judiciary. This is what occurred when a unanimous Supreme Court recently ruled that two “recess” appointments to the NLRB were unconstitutional because the president erred in his determination that the Senate was in recess, and this is what will undoubtedly be the case regardless of whether the courts uphold or strike down the executive orders. From this perspective, gridlock that leads to judicial clarification of the proper balance of the powers of the legislative and executive branches is not necessarily such a bad thing.

Warren Belmar

Warren Belmar is the managing director of Capitol Counsel Group, a firm whose primary mission is to help clients navigate the complex world of today’s federal regulatory environment.