A defining feature of Barack Obama’s presidency was the rise of executive unilateralism. Obama, frustrated with the procedural constraints that govern America’s government, took several executive actions on his own that amounted to legislation by presidential fiat. Some of these actions, like DACA and DAPA, were justified on the basis of prosecutorial discretion, while others, like certain financial and environmental regulations, were implemented via federal agencies. But in practice, these initiatives amounted to material changes to the law that were instituted without congressional approval. They amounted, in other words, to the President’s usurpation of Congress’s constitutional role. “To those members of Congress who question my authority to make our immigration system work better or question the wisdom of [my] acting where Congress has failed, I have one answer: Pass a bill,” Obama said in 2014.
Conservatives rightly attacked this practice as an abuse of executive power that was pernicious to the constitutional order. “That the constitutional system will not acquiesce in its own debilitation is not a justification for debilitating it,” Ramesh Ponnuru and Yuval Levin wrote in National Review. Obama was frustrated with the intransigence of congressional Republicans, and took matters into his own hands. But that’s not how the American system should work, and that’s not how laws should be made.
Today, the president will engage in executive unilateralism of his own. Donald Trump will sign an executive order directing agencies to revisit some of the health-care regulations imposed by the Affordable Care Act. “Since Congress can’t get its act together on HealthCare, I will be using the power of the pen to give great HealthCare to many people — FAST,” he tweeted yesterday morning. If that sounds familiar, it should: The president, whose agenda is constrained by the Constitution (and, arguably, the ongoing decay of our political institutions), is taking matters into his own hands.
The policy Trump will implement may have its merits: Current regulations on who can join association health plans are onerous, and rewriting those will orient the health-care system in a freer direction. But the process by which he is implementing it does not. Executive unilateralism is wrong irrespective of the executive.