President Obama, by Executive Order, is moving to ease the means by which some homeowners whose homes are underwater, can refinance their mortgages, and he is moving, also by Executive Order, to “ease the burden of student debt” for some students.  These moves come as part of an announced plan to make similar unilateral Executive Office moves on a periodic basis, and these moves come under the newly minted campaign slogan “We can’t wait.”

Of course there is a large hue and cry over this.  It must be unconstitutional, the President is bypassing Congress, and so on.  But is this accurate?  Is this executive overreach, or is this an executive officer acting like an executive officer?

Article II of our Constitution vests executive power in the President, and he is the Commander in Chief of our military forces.  The executive power authorizes the President to act unilaterally in emergencies so that a national response will not be delayed by waiting on the much slower-moving large committee that is the Congress.  The Congress’ involvement is not lost, though: when it catches up with the situation, it can overrule or condone, at its sole discretion, the President’s actions.  On the other hand, this is not license for the President to overrule the Congress.  His opportunity to do that is limited to his veto power and his authority to send his Attorney General into the courts to challenge—on Constitutional grounds, not simply any reason that might suit him—a law passed by Congress over his veto.

Yet the hoo-raw is based on the principle of the President acting unilaterally.  This smacks of being driven by party roles rather than being based on principle.  One party must support all of these actions, regardless of their legitimacy, because that is the role defined for it; the other party must vociferously object for the same mindless reason.

Certainly, the beef is given credence by those unilateral actions the President has taken in order to avoid Congressional oversight or in order to overrule the Congress altogether.  The recess appointment of Dr. Donald Berwick to be his Administrator for the Centers for Medicare and Medicaid Services explicitly to avoid the Senate’s hearings on his suitability comes to mind.  So, too, does the creation of  the position of Assistant to the President and Special Advisor to the Secretary of the Treasury on the Consumer Financial Protection Bureau for Dr Elizabeth Warren to run the Consumer Financial Protection Bureau from his office, without recourse to the Congress.  And his decision to let stand a memo issued by Immigration and Customs Enforcement Director, John Morton, that implemented various detention paradigms of the DREAM Act which Congress had explicitly declined to enact.

This sort of thing notwithstanding, though, of course the President can act unilaterally when the situation warrants.  This is what a President is for under our social compact.  The present economic situation demands prompt action: even our Defense Chief—whose military the President’s ability promptly to deploy and employ on his own authority, at least temporarily, is quite clear—and our Secretary of State are on record as acknowledging our economic straits and our national debt to be matters of national security.

The principle of unilateral action is sound.  There is plenty about which to criticize the President over these last three years.  But integrity and justice demand that we criticize his actions—and I have objected to much of his actions and decisions—we are remiss to criticize the Executive Officer solely because he acts like one.