Some members of Congress, especially conservatives, have decried President Obama’s executive order with respect to immigration policy as a fundamental assault on the concept of separation of powers. Yet the same conservatives are stridently opposed to the President’s decision to restore diplomatic relations with Cuba—threatening to withhold funding of the attempt to establish an embassy in Cuba or to otherwise support the decision to give complete diplomatic recognition of the Cuban government. So much for a coherent theory of the executive power or the idea of separation of powers!
So much for a coherent theory of the executive power or the idea of separation of powers!
Conservative activists, like Senator Rubio, historically endorsed executive assertions that Congress may not limit the exercise of core executive duties even in the exercise of its power over appropriations. They have uniformly agreed that “a President who acts to discharge his article II duties when Congress has failed or refused to provide him appropriations for that purpose does not violate the appropriations power.”
When Congress attempted in 1995 to condition funding of diplomatic posts in Vietnam on a certification that Vietnam was fully cooperating in providing documents to account for POW/MIA’S from the Vietnam war, the State Department declared that such a provision was “an unconstitutional condition on the exercise of the President’s power to control the recognition and non-recognition of foreign governments.” Conservative statesmen and commentators have applied such thinking in a wide variety of contexts. In 1987, Congressman (later Vice President) Dick Cheney authored the minority report in the Report of the Congressional Committees Investigating the Iran-Contra Affair. There he contended that President Reagan could ignore the spending limitations contained in the so-called Boland Amendment based on the President’s discretionary power to approve of covert operations, a power he claimed was already acknowledged by Congress.
And President George W. Bush, following advice from his Justice Department, insisted that as Commander in Chief, his power over tactical and strategic decisions executing war meant that he could authorize violation of federal statutory law forbidding torture. When Congress enacted new legislation to directly forbid the use of torture, he signed the law, but issued a signing statement that Professor David Golove read as asserting the power to violate the law if something arose in the war on terrorism that warranted the use of torture or cruel, inhuman, and degrading conduct.
If these members of Congress are to act consistently and coherently, they would not even consider refusing to fund an embassy or approve an ambassador to Cuba for no other reason than to undercut the President’s long-recognized authority to recognize other nations and establish diplomatic relations. And if the President dipped into alternative funds to accomplish such purposes despite such funding decisions, they would insist on his power to do so. Conservatives in Congress insist on reading the Constitution aloud, and frequently invoke it to oppose the policies of this President; but no one has accused them of having a coherent theory of the separation of powers or the power of the Presidency.