Obama's Promises Not Kept: The president cannot unilaterally change the law. Yet that is exactly what he has done

POLITICO

Barack Obama’s promises not kept

With his recent signing statement, Obama did something he vowed wouldn't, the authors write. | AP Photo Close

By MITCHEL A. SOLLENBERGER & MARK J. ROZELL | 4/29/11 4:32 AM EDT

It is an age-old complaint in presidential politics: The chief executive didn’t keep a campaign promise.

It is true, candidates over-promise and presidents can’t deliver on everything.

But some pledges are so clear-cut, that they invite justified outrage when reversed. Such is the case with President Barack Obama’s backtracking on his promise not to unilaterally change or nullify laws. With his recent signing statement on the anti-czars provision of the budget compromise, he did just that.

The president “abrogated” section 2262 of the budget compromise law, which prohibits using appropriations for the salaries and expenses of certain White House czars.

This budget agreement was the result of lengthy negotiations between Obama and congressional lawmakers. Yet when the final bill went to the White House for the president’s signature, Obama did something that he vowed he would never do: He issued a signing statement that effectively nullified one provision.

The president says he “has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority.” It is true that the Take Care Clause of the Constitution authorizes the president to faithfully carry out the law.

However, that does not limit lawmakers’ ability to shape policy and the governing structure that implements it. Every executive department and agency owes its existence to Congress. Lawmakers have the authority to reshape any part of the executive branch –– even the Executive Office of the President –– as they see fit. Nothing in the Constitution prevents that.

Obama also claims that the president “has the prerogative to obtain advice” from all quarters of the executive branch. Of course, presidents can seek advice from White House aides, Cabinet secretaries, other executive branch officials, even private citizens. No one disputes that. And abolishing czars does not change his ability to do so.

If that were the case, then Congress could only create executive branch positions — but not eliminate them. What Obama is asserting here is that Congress cannot invade his “prerogative” to hire and fire White House staff.

But no such prerogative exists. Congress, by law, determines the number of White House staff and their pay levels. The president has no open-ended authority to hire whomever he likes, and have the public pay their salaries.

In addition, Obama argues that section 2262 violates the separation of powers. Certainly, when presidents create new positions that mimic the duties of statutorily authorized and Senate-confirmed Cabinet secretaries, then Congress may intervene. Presidents who circumvent congressional controls by creating czar after czar invite Congress to correct the imbalance of power.

If a president cannot rely on his health and human services secretary or another Cabinet member, the constitutional course of action is not to create a position with overlapping duties, but go to Congress to find a statutory solution.

Obama is essentially telling Congress he will avoid confirmation hearings by appointing czars. He also is taking congressional appropriations used to pay their salaries and expenses, even if lawmakers clearly state in law those positions are not funded. Such reasoning represents the height of presidential hubris — and shows an utter contempt for Congress as a co-equal branch.

The president cannot unilaterally change the law. Obama got it right in his campaign: “I will not use signing statements to nullify or undermine congressional instructions as enacted into law.”

Yet that is exactly what Obama has done. What the president could not block during the budget negotiations he has unilaterally stripped from the very bill he signed.

The candidate who promised change from the dubious exercises of presidential power by his predecessor has again embraced them as president.

Mitchel Sollenberger is assistant professor of political science at University of Michigan-Dearborn. Mark Rozell is a professor of public policy at George Mason University. They are writing a book about executive branch czars.