Commentary: Unilateral action, the real Obama legacy

David French

is a senior fellow at the National Review Institute

Barack Obama's constitutional legacy can be summed up in just five words - the ends justify the means. Frustrated by congressional resistance and either unable or unwilling to compromise, the Obama administration repeatedly circumvented the constitutional lawmaking process to attempt to achieve the outcomes it wanted. In other words, so long as it got the right result, the administration didn't seem to care about the process.

Take, for example, the administration's approach to immigration reform. President Obama's most consequential immigration policy wasn't a statute that he helped shepherd through Congress. It wasn't even a regulation that his administration promulgated in accordance with the Administrative Procedure Act. It was a mere memorandum that, at the stroke of a pen purported to exercise the "prosecutorial discretion" to grant millions of illegal immigrants "administrative relief" from possible deportation.

There was a time when the administration perhaps could have passed sweeping immigration reform - when it enjoyed a House majority and a filibusterproof Senate majority. But that time passed when the American people elected Republican majorities first in the House and then in the Senate. The administration's frustration at divided government did not provide the legal justification for unilateral lawmaking.

The Constitution established a process for making and enforcing laws, one that requires both houses of Congress to act - presenting legislation to the president for his signature. This process is fundamental to the checks and balances that not only safeguard American liberty; they introduce stability and a degree of consensus into national politics and policy. Indeed, sometimes "gridlock" represents the will of the people.

Executive-branch memoranda, by contrast, are deeply destabilizing. They can impact the rights of millions - only to be torn apart by the next president when he or she assumes office. They place key policy questions in the hands of unelected bureaucrats who are far removed from the electoral process. It's the antithesis of the proper constitutional process.

To understand the challenges, consider the sweeping administrative actions that have helped transform American colleges, schools, and workplaces. Again, without an act of Congress or even bothering to promulgate a regulation, the Obama administration has dictated sexual-assault policies to universities, gender-identity guidelines to all schools receiving federal funds, and transformed American workplaces by expanding nondiscrimination rules. Liberals cheered each one of these developments. Each of these developments can be undone with the stroke of Donald Trump's pen.

Indeed, apprehensive progressives should hope and pray that Trump has greater respect for constitutional processes than did President Obama. Do they want to see educational policy, workplace nondiscrimination rules, and immigration enforcement dictated through President Trump's pen, leaving only a divided judiciary to stop his worst excesses?

It's amazing the difference an election day can make. Liberals who hated gridlock now count on it to slow or halt the repeal of Obamacare. Leftists who cheered executive power when memoranda were creating new federal "rights" out of thin air are now calling for restraint as a new administration contemplates using the exact same powers as its predecessors. The filibuster is en vogue again.

Of course, you can expect some members of the GOP to undergo their own radical transformations. Executive power will be fashionable again, and we'll see extreme frustration each and every time the Democrats choose to filibuster. The will to power afflicts every party, and every person is tempted to justify their actions by the presumed virtue of its outcome.

That's precisely why the Founders created a system where the means are the ends. In other words, the process itself is just as important as any given policy outcome - even to the point of helping dictate outcomes through the necessities of persuasion and compromise. No matter the demands of activists, government must not act if it can only act unlawfully.

A generation of flawed statutes and flawed Supreme Court precedents have given the president far too much power. President Trump should act to limit his own power and restore our nation's checks and balances, even if that means giving up a favored policy. To use the language of the election, constitutional processes were indispensable to making America great, and rediscovering and enforcing those processes can make America great again.

David French will be among panelists discussing "The Constitutional Legacy of President Obama" at 6:30 p.m. Wednesday at the National Constitution Center. To register, visit www.constitutioncenter.org/debate or call 215-409-6700.