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Obama vs. the Constitution

December 27, 2013, 8:54 PM

“If you like your health plan, you can keep it,” is the Lie of the Year, according to PolitiFact. But Barack Obama has been operating under an even more momentous lie for his entire presidency, from the day he took the oath of office. With that oath, he swore to “faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

The Constitution states the president “shall take Care that the Laws be faithfully executed.” This is a duty, not a discretionary power. The president must enforce the laws as written. He has no authority to rewrite, amend, suspend, grant waivers to, or decide not to enforce them, but Obama has done all these. John Yoo, a professor of law (U. of Calif., Berkeley), writes:

Obama has pursued a dangerous change in powers of his office that disregards the Constitution’s separation of powers between the branches of the federal government.

On December 3, 2013, Jonathan Turley, a law professor at George Washington University, presented a written testimony to the House Judiciary Committee stating:

When a president claims the inherent power of both legislation and enforcement, he becomes a virtual government unto himself. He is not simply posing a danger to the constitutional system; he becomes the very danger that the Constitution was designed to avoid.

One of Obama’s first acts as president—only a month since he took the oath of office—was to announce his elimination of the Yucca Mountain site in Nevada for storing highly radioactive nuclear waste. He flouted decades of scientific study and countermanded the explicit decisions of Congress set forth in duly-enacted laws over many years. In 1982 Congress directed the government to assume responsibility for commercial nuclear waste. In 1987 it singled out Yucca Mountain for evaluation as the repository because of its remote and dry location. After years of research, Congress in 2002 endorsed the Yucca Mountain site.

Between 1987 and 2009, when Obama put himself above the law by effectively revoking it, $13.5 billion was spent on the program; a five-mile tunnel was bored into the mountain, and hundreds of studies determined the safety of the site for thousands of years. The nuclear industry was also forced to pay $22 billion to the Energy Department for establishment of the repository. Obama is not a scientist, and his decision was not made from a review of the scientific research. But that is not the point, nor is the billions of dollars of taxpayer money that went down the drain.

The point is that Obama had no authority to violate the law rather than faithfully execute it. He called for more study of the issue, which he had no power to authorize. (More than 20 years of study already was not enough?) He said nuclear power still had a place in the U.S. and his administration would be quick to offer an alternative. With no alternative suggested after almost five years now, it is apparent he had no intention of providing any. In his 2008 presidential campaign, Obama told Nevadans that if elected he would not allow nuclear wastes to be stored in Nevada. End of story. So much for his oath of office and the constitutional requirement he “take care that the Laws be faithfully executed.”

That was only Obama’s opening shot against the Constitution. It was followed by a barrage of others.

The GM and Chrysler bankruptcies of 2009 were directed by a White House task force that upended established bankruptcy procedures. A major element of a bankruptcy is that debtors similarly situated get treated the same, but Obama violated this several ways, always to the benefit of unions. Under terms of the bailouts, Chrysler’s unsecured union benefit trust fund got paid instead of Chrysler’s secured creditors, and GM was required to pay parts manufacturer Delphi’s union retirees $1 billion while its non-union retirees got nothing. What legal authority did Obama have for rewriting almost of a century of bankruptcy law as payback for political support from the United Auto Workers? None.

In the case of the BP oil spill in the Gulf of Mexico, Obama bypassed the courts and himself decreed the fine for BP. He also unlawfully imposed a moratorium on oil drilling, which drew a rebuke by the court–in vain.

Obama decreed “recess” appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau by claiming the Senate was not in session, meaning no Senate confirmation was required. However, the Senate was not in recess but merely taking a break within a session. Two federal courts subsequently held these Obama appointments were unconstitutional usurpations and voided them.

Professor Yoo writes: “Obama is the first chief executive since Richard Nixon to ignore a duly-enacted law simply because he disagrees with it.” Obama instructed his justice department to cease enforcement of immigration laws against certain illegal immigrants. By executive order he adopted the very conditions allowing immigrants to remain in the U.S. that Congress rejected by refusing to enact the Dream Act. Before Congress’ rejection, Obama himself had repeatedly stated the Constitution forbade him from taking these actions without Congress.

Under an executive order by Obama, attorney general Eric Holder ordered U.S. attorneys to stop prosecuting certain drug defendants for crimes that carry mandatory sentences. This is certainly contrary to the U.S. Supreme Court in Kendall v. United States1938, which said allowing the president to refuse to enforce laws “would be clothing the president with a power to control the legislation of Congress, and paralyze the administration of justice.”

The president replaced congressional requirements for state compliance with the No Child Left Behind Act with new ones crafted by his administration. His administration also provided waivers to 42 states, Washington D.C., and Puerto Rico even though the law contained no provision for waivers.

Though the 1996 Welfare Programs Act required people on welfare to work or prepare for a job in order to receive federal benefits, the Obama administration waived the requirement.

There is no constitutional authority to order private companies to provide free services, but Obama’s Department of Health and Human Services regulations require private insurers to provide free contraceptives to employees of objecting religious institutions.

According to our Constitution, only Congress can declare war. In a 2007 interview Obama said:

The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

Yet he ordered airstrikes against Libya though that country had neither attacked nor threatened us. Similarly, he asserted he didn’t need Congressional approval for taking military action against Syria because it had used chemical weapons. But Syria neither attacked us nor threatened to do so. Obama claimed his proposed military action against Syria was authorized by the War Powers Resolution, passed in 1973 as a result of the Vietnam experience. But the WPR specifically states that it applies to cases where the U.S. is attacked or is threatened with attack.

Federal law requires the president every year to submit a budget to Congress by the first Monday in February in order to start the congressional budgeting process. In four years Obama failed to meet this requirement. Congress also failed to adopt a budget for four years, thereby allowing the president great leeway in allocating funds within each department of the executive branch. Before this year, the last thing Congress passed that resembled a budget was a 2009 spending bill that combined nine normal separate bills.

Obama violated the law in numerous ways regarding his signature act, the Affordable Care Act (Obamacare). That law specifically says it “shall apply to months beginning after December 31, 2013.” There is no provision for allowing the president to suspend or delay any part of it. Writing for the U.S. Supreme Court in 1998, Justice John Paul Stevens wrote:

There is no provision in the Constitution that authorizes a president to enact, to amend, or to repeal statutes.

So Obama was violating the law and the Constitution when he changed to 2015 the Obamacare requirement of 2014 as the year employers with 50 full-time workers must offer health-care coverage or pay fines. He also violated the law by suspending the requirement that individuals seeking subsidized health insurance prove their eligibility. He violated again when his Health and Human Services Secretary granted some 1,200 waivers from Obamacare requirements for hundreds of unions, companies and special interests.

In December 2013 syndicated columnist Charles Krauthammer wrote:

HHS . . . asked insurance providers to start covering people on January 1 even if they signed up as late as the day before and even if they hadn’t paid their premiums. And it is ‘strongly encouraging’ them to pay for the transition for doctor visits not covered in their current plans (if covered in the patient’s previous—canceled—plan). On what authority does a Cabinet secretary tell private companies to pay for services not in their plans and cover people not on their rolls?

Is this America? Krauthammer also notes that the phrase “strongly encouraging” is an offer the insurers can’t refuse:

Disappoint your federal master and he has the power to kick you off the exchanges, where the health insurance business of the future is supposed to be conducted.

Again, is this America?

Obama ignores the separation of powers and fails to respect Congress as an equal branch of government. At one point he famously even refused to negotiate with it. Rather than working with Congress, he told an audience in Denver that his administration will “look every single day to figure out what we can do, without Congress.”

He treats Congress like a second class department of which he is the superior to determine whether or not it is doing its job. “We can’t wait for Congress to do its job, so where they won’t act, I will,” he said regarding his Jobs Bill. “It is the belief of this administration . . . that we can’t wait for action on the Hill,” Obama said when signing an executive order regarding the FDA. “If Congress won’t act soon to protect future generations, I will,” Obama pledged. “I will direct my cabinet to come up with executive actions we can take . . . ”

He ought to know—but apparently doesn’t—that the executive branch must work with the Congress, not evade it, and it is not the president’s role to determine what Congress’ job is and whether or not it is doing that job. The Constitution determines what Congress’ job is, and the voters are the ones to determine whether or not their representatives are doing their job.

In 1868 the House impeached President Andrew Johnson for defying the Tenure of Office Act, which prohibited him from firing anyone in Lincoln’s cabinet. Johnson fired Secretary of War Edwin Stanton anyway. The Senate failed to convict him by a single vote.

Andrew Johnson committed a single violation of one law. Obama has committed multiple violations of multiple laws. Of course, with a Democratic majority in the Senate, Obama would never be convicted if impeached, and today there is far less concern about a president violating the law than when Johnson was president. It shows the pitiful, lawless, degradation of our once free country resulting from Obama “fundamentally transforming” America.

[First published at American Liberty.]

Categories: On the Blog

The World In Crisis

December 27, 2013, 4:53 PM

We close 2013 in a world that seems to be swiftly tilting toward ever-larger crises of government legitimacy, oncoming clashes of foreign powers, and an abiding sense of concern on the part of the American people that the economic realities of long-term unemployment, wage stagnation, and the working class squeeze of higher prices for health care, higher education, and basic goods and services are not a brief trend, but enduring problems for which Washington has no solutions.

On the foreign policy front, 2013 may well turn out to be the year in which offered a preface for the Next Big War. From Iran to Syria to China, the American position has collapsed with such rapidity that our understanding of these situations from just a year ago are dramatically altered. The era of the Monroe Doctrine may be over, but the lack of an American grand strategy has left our approach to foreign policy an extended drama of incoherence, and our inability to grapple with the unraveling of the Middle East in the wake of the Arab Spring is only one of many challenges which will present themselves in the coming year. Unrest is only likely to increase in a global economy where youth unemployment has actually increased to the same levels as during the economic crisis.

But the crisis closer to home may be the one which proves more troublesome in the long term: a crisis of legitimacy within Western democracy, one that has gripped the American system in the wake of the mismanagement of elections, disasters, wars, financial crises, stimulus packages, bailouts, and now health care overhauls. Americans are losing faith in the American Dream for themselves and for their children, and they are roughly evenly split on whether the solution to these problems is more government or more liberty – a question which is becoming the defining decision of our era.

This is about more than just who we elect or which party we trust in which arena. It represents a very real schism about first principles and the universe – a division between an approach to life which considers natural law, inherent rights and duties, the rule of law and more as important, and one which views as essential the ongoing actions of the collective to achieve a secular social justice. The shared underlying assumptions about life and the ordering of society, which had such a strong role in America’s early success, are largely gone or greatly diminished. They aren’t coming back.

The rise of the Nones – those who don’t believe in anything in particular, and aren’t interested in investigating faith – is only likely to increase. One in three Millennials profess no religious affiliation, and one of the underestimated aspects of their absence of participation in a faith community of any sort is their lack of interest in seeking one out. Perhaps there’s a silver lining here, from a secularist perspective: a less religious America may sound like a context for less religious strife – fewer people who care, fewer people to argue about it, right? But the reverse is true.

The culture wars haven’t ended – they’ve escalated, and they will continue to escalate in a society where people have fewer commonly held views, and less respect for those who disagree with them for any reason, least of all a religious one. The lack of a shared language of compromise and respect leads to ongoing and increasingly contentious clashes of faith, politics, and sexual rights, where lightning rods of courts and culture lead to flashpoints that strain social bonds, break friendships, and end the ability to have a healthy community where disagreement over law and politics does not lead to death threats on social media.

The next year will bring more flashpoints in the broken public square. In 2014, the highest courts in the land will rule on the ability of Christian business owners to practice their faith as they see fit, and the power of government to compel them to go against their beliefs. We might hope for a country where more people would lay down their arms and view those who disagree with their ideology with respect and impartiality. But for all the handwringing, history has shown us that this is the way things go when trust breaks down and respect vanishes. As G.K. Chesterton notes: “Why should they be impartial, what is being impartial, when the whole world is at war about whether one thing is a devouring superstition or a divine hope?”

Of course, there is still hope. The nation has survived incredible crises before, on the global scale and within our society. The path toward liberty is still a viable one. And perhaps we will find that even when things break down, when government fails and grand strategies fade, the American people can count on each other more than they thought. These are strange times for the country and the world. But we may find that, even as institutions fail us, the American people exceed expectations. They have done it so many times before. In the coming year, they will be called on to do so again.

[First published at The Federalist.]

Categories: On the Blog