David Pozen has a fascinating new article in the YLJ, titled “Self-Help and the Separation of Powers,” and an explanatory post at Just Security, titled “Interpretation and Retaliation in the Obama Administration.” David’s article, in short, argues that when Congressional intransigence prevent the President form enacting his policies, Chief Executives resort to a form of self-help through creative interpretation of the existing law, and his own Article II powers. David cites as examples the President (and Harold Koh’s, contra OLC) determination that our involvement in Libya was not “hostilities” within the War Powers Resolution. Or, the President’s decision to enforce a quasi-DREAM act through executive fiat, after a Senate filibuster killed it (remember Justice Scalia’s irate Arizona v. US dissent on that?).
I would add one key example to David’s framework: Obamacare! If both Houses of Congress were controlled by Democrats, the ACA’s countless flaws, errors, and kinks could have been fixed by legislation. Further, Congress could have extended deadlines, imposed across-the-board waivers, and perhaps allocated more funding for the implementation of the law. That did not happen. The GOP has, at every conceivable juncture, frustrated the ACA’s implementation. So, applying David’s theory, POTUS turned to self-help. Through myriad delays, waivers, and creative reinterpretations of the Affordable Care Act, the President has achieved the policy goals that would have been present had the Democrats controlled Congress.
Of course, this puts aside the fact that congressional Democrats got creamed in 2010, largely in response to opposition Obamacare. That the President can enact his policies, notwithstanding electoral returns and Congressional opposition, seems to be consistent with his broad view of Article II powers. The Bergdahl prisoner swap, in direct contravention of the text of the law, is further evidence of this fact.
Update: Also on point is Nick Bagley’s article in the New England Journal of Medicine, titled “The Legality of Delaying Key Elements of the ACA.” I blogged about it in April.