By John Weeks

[My new book is in published, The Economics of the 99%: How mainstream economics serves the rich, obscures reality and distorts policy, order from Anthem Press or Amazon, less than $20, more information at http://jweeks.org]

The right attacks FDR’s 1937 Supreme Court reform (left) and Obama’s 2009 health care proposal (right).

Commentators in the mainstream median and here in the Real News Network have taken President Obama to task for the minimalism shown in his State of the Union Address and the 2014 program it contained (though I am not use there is enough there to qualify as a program).  Much of the initial mainstream commentary focused on the wisdom or lack of it in the promise to use executive orders to by-pass the Republican-led and invariably obstructionist House of Representatives.   In the progressive media that I have seen the role of executive orders as such receives little comment.

Something much more important than the failings of a weak president is going on here.  In my view the president’s emphasis on use of the executive order to achieve policies that would otherwise die in Congress is far more important that the failings of the policies themselves.  The explicit recognition by the president that public affairs can no longer be conducted through the usual processes represents nothing less than a looming constitutional crisis.  This would not be first such crisis in US history.  It is worth looking back at the previous ones to assess what we now encounter.  The others foretold progressive change.  This one is the harbinger of the reverse.

Anyone who suffered through high school courses explaining the operation of the US government, called “Civics Classes” in my day, learned of the genius of the Founding Fathers in designing a system of separation and balance of powers.  Legislative powers would be divided between two institutions (the House of Representatives and the Senate), executive power held by the presidency, and a supreme court with membership for life to assess the legality of the actions of the other two “branches”.  Few of us learned that the principle motivations for this complex structure were 1) to restrict the power of the electorate, and 2) to protect the institution of slavery.

We find the restriction of democratic rights inscribed in many parts of the constitution.  The most obvious examples are the provision that US Senators be elected by state legislatures (changed to popular election by the 17th Amendment in 1913), and indirect election of presidents through an “electoral college” (still with us, just ask George W Bush).  Rarely cited as anti-democratic is the extraordinary nature of the Senate.  The provision that each state have two Senators makes this body one of the most undemocratic legislative assemblies in any representative democracy.  If you go to the numbers, you discover that barely a third of the US population can elect over half of the Senate (I should add that as a Vermont voter I am very pleased to have two Senators, one a socialist and the other very progressive, but it is madness that a state with 600,000 people would have the same number of Senators as California with population of 38 million).

This governmental structure designed to delay and block change inevitably would provoke constitutional cries.  First serious crisis led to a Civil War that ended chattel slavery after repeated legislative attempts failed, and to which the Supreme Court contributed by strict interpretation of the rights of slave owners (the Dred Scott case).  Modern critics of Abraham Lincoln take him to task for the limited scope of the Emancipation Proclamation of 1863, which freed slaves only in the militarily occupied states as part of seizing rebel property, not in the country as a whole.  This limitation has a simple explanation – courts including the Supreme Court had interpreted the Constitution as giving the legal right to own slaves.  As a result, the executive order could not apply to the entire country.  This would require the 13th Amendment, passed by Congress when Lincoln was president and ratified after his assassination.  Congress could approve that amendment only because the House members and Senators from the secessionist slave states had been expelled.

The other major constitutional crisis occurred in the 1930s, when an unabashedly reactionary Supreme Court repeatedly struck down progressive legislation at the federal and state levels.  To by-pass this obstacle to the popular will, President Franklin D. Roosevelt submitted to Congress the Judicial Procedures Reform Bill, which would have given him the power to appoint a maximum of four additional judges (listen to Roosevelt’s “fire side chat” justifying the bill).

Attacked by his opponents as an attempt to “pack” the Court, it served its purpose without being becoming law.  In the then-famous case to decide the legality of a state minimum wage in Washington, the Court reversed itself, the notorious “shift in time saves nine”.  The Senate, whose leadership was controlled by racists from the former Confederacy, frequently represented an equal obstacle to Roosevelt’s New Deal.  This he would finesse by allowing restrictions in his progressive laws to limit their application to African-Americans (for example, excluding agricultural labor from minimum wage laws and social security).  The greatest compromise he would make to the southern racists was to replace the progressive Henry Wallace with the conservative Harry Truman as his vice-presidential candidate in 1944.  We still live with the consequences.

These constitutional crises bring us to the State of the Union Address 2014.  For five years extremely well-funded authoritarian, far-right elements in the Republican Party have sought to render the United States ungovernable at the federal level.  I have called an Americanized Weimar Republic strategy.  This far-right has been successful in preventing formerly straight-forward legislative actions such as the Senate confirming presidential appointments (leading to the president making “recess appointments”, now under review by the right-wing dominated Supreme Court).  The federal budget agreement in December represents the only substantial legislation recently to pass through the Republican controlled House of Representatives.  This concession by the Republican right was purely tactical – fear of electoral losses later this year.

To a great extent the degeneration of the US democratic process that requires use of executive orders follows from Obama’s failure to take advantage of his substantial Congressional majority in 2009-2010.  His repeated retreat from confrontation, justified as seeking a non-existent bipartisan cooperation, provided a free gift to the far right.  In those early days of its weak and of limited influence, the right received a two year space to gather its strength.  During the Congressional campaign of 2010 it could both claim that the president was ineffective and that the most important legislation, the fiscal stimulus and the health care bill, were sources of disaster.  The shortcomings of both were in part the result of the opposition by the right itself.

When assigning to Obama his well-earned contribution to the current crisis of governance, we should not lose sight of the fundamental cause, a heavily funded far right that has as its goal an anti-democratic, semi-authoritarian federal government and a civil society rendered docile through reactionary legislation.  The measures to achieve this end, facilitated by unlimited funding from the mega-wealthy, are 1) restriction of voting rights under the guise of stopping electoral fraud, 2) generating cynicism and apathy among the public by paralyzing the federal government, and 3) direct political control in states where progressive forces are weak.

In my view the mid-term elections this year loom large in the democratic future of the country.  If Republicans retain control of the House of Representatives – much less take a Senate majority – the collapse of normal governance will change from a transitory moment to semi-permanence.  And should that be followed by the election of a right wing Republican president, Obama’s use of the executive order will seem mild by comparison.  The confrontation between a dedicated and focused far right and a weak and vacillating middle-of-the-road president will bear its bitter fruit.

John Weeks

John Weeks is Professor Emeritus and Senior Researcher at the Centre for Development Policy and Research, and Research on Money and Finance Group at the School of Oriental & African Studies at the University of London.