David Pozen has an excellent guest post entitled, "Interpretation and Retaliation in the Obama Administration" on Just Security. Here is an excerpt:
Across a range of areas, this Administration has responded to perceived legislative misconduct by interpreting away legal limits that might have seemed to stand in its way. Interpretation has been a tool of constitutional adaptation and retaliation. * * *
But what these cases share, I think, is this: the conjoining of an aggressive interpretive stance with a suggestion that Congress’s institutional pathologies—its pervasive gridlock, grandstanding, and partisanship amounting to a kind of constitutional bad faith—enhanced the President’s discretion as a matter of policy if not also of law. That is to say, the executive made claims of discretionary authority that it would not have dared to make but for a perceived breach of background separation-of-powers norms by Congress in the first instance.
The stakes here are profound. On the one hand, the specter of lawless self-aggrandizement looms over the entire set of episodes. On the other hand, if we take the Administration’s political rhetoric seriously, we find that its interpretive method is wrapped up in, and animated by, a concern for the continued integrity and workability of our constitutional system. “[T]oday’s pattern of obstruction” in Congress, the Presidentinsists, has “been harmful to our democracy,” is “not what our founders envisioned,” and “just isn’t normal”; it jeopardizes “the ability of any president to fulfill his or her constitutional duty.” Put in somewhat different terms, it violates longstanding constitutional conventions that allow the government to get things done. These are fighting words in the separation-of-powers arena, where historical practice exerts a great deal of normative force and “functional” arguments about the need to maintain “the proper balance between the coordinate branches” are taken to have constitutional significance.
And so the President has fought back. The implicit theory seems to be that when the law-making branch of government is broken, the law-executing branch must enjoy greater freedom to utilize the laws with which it is stuck. Dysfunction yields discretion.