A common refrain from the Right is that they don’t like judges legislating from the bench. Now what they really mean is judges who decide cases in ways that they don’t like.
Judges shouldn’t render decisions that are effectively legislative rather than judicial and generally they do everything possible to avoid assuming the role of a one man or one woman legislative force.
This makes sense since our Constitution grants the legislative power to the Congress under Article I.
The Constitution clearly states, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Art I, Sec. 1.
Article II of the Constitution grants power to the office of the President. The only time the President is mentioned in Article I is in reference to the veto power of the President.
Legislating from the bench would be anathema to our Constitution so why do we tolerate it from the White House?
Congress is the deliberative body that represents the various views of the people. They’re supposed to haggle about bits and pieces of legislation and craft something that will be acceptable to most Americans. Then the president is supposed to approve the legislation or veto it explaining why. Then it’s back to the Congress to shape it some more.
Though our two Democratic candidates are only a hair apart on most issues it seems to go without saying their styles and, I’d say, understanding of the role of the President are quite different.
One criticism of Barack Obama is that he’s to vague. He doesn’t offer enough specifics in his plans. On the other hand Hillary Clinton is quite the obvious policy wonk (not that I don’t think Obama is but he shares less of that on stage) and is certainly willing to craft detailed and complete legislative plans.
While one might prefer the Clinton approach as it makes them feel more comfortable knowing exactly where the president stands down to the tiniest detail I think it’s a position that one can take only if they do not understand the Constitution.
The President is not the Legislator-in-Chief. The President is supposed to have a limited role with limited powers. The Framers of the Constitution found the idea of a very strong and intrusive President to be undesirable and the structure and text of the Constitution reflects that.
The President can set the course of the ship but the details of that course are supposed to be plotted by Congress and then that map is given back to the President to accept or reject.
However, over the years we’ve seen the White House offer various completed bills for the Congress to pass. See Bush’s Clear Skies plan or the first Clinton Health Care plan. Though this is clearly not how it’s supposed to work according to the Constitution it’s become a habit. I’d argue a bad habit.
Not to mention this theme of a line item veto that keeps appearing.
What’s lacking from the process is the implicit representation of the will of the people that’s present (or is supposed to be) when Congress crafts a bill. That means the bill is lacking the force that accompanies something that represents the view of a majority of Americans. Such a bill is easily killed, or if a compliant Congress rams it through, easily derided and will be lacking in public support.
So is the Constitution just some old piece of paper or not?
If not, we should try to follow it and if we don’t like it we can change it through the amendment process.