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The Conservative Curmudgeon
August 1, 2014
Is It Too Much To Ask The President to Faithfully Execute the Laws?
by Allan C. Brownfeld
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ALEXANDRIA, VA — From the beginning of recorded history to the present time, very few societies have lived in freedom. The Founding Fathers understood very well that freedom was not man’s natural state. Their entire political philosophy was based on a fear of government power and the need to limit and control that power very strictly.
That government should be clearly limited and that power is a corrupting force was the essential perception held by the men who wrote the Constitution. They limited government power and divided it between three branches, the legislative, executive and judicial, so that one branch could serve as a check on the others.
In The Federalist Papers, James Madison wrote: “It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself.”
The Constitution gives Congress the power to declare war. Yet, we have gone to war repeatedly since World War II without a declaration of war, most recently when George W. Bush invaded Iraq to remove alleged “weapons of mass destruction” which did not exist.
In recent years, under both Republicans and Democrats, the power of the president, the so-called “Imperial Presidency,” has dramatically expanded. The Constitution gives Congress the power to declare war. Yet, we have gone to war repeatedly since World War II without a declaration of war, most recently when George W. Bush invaded Iraq to remove alleged “weapons of mass destruction” which did not exist.
Under President Obama, declares Jonathan Turley, professor of Public Interest Law at George Washington University, “This trend...has accelerated. Obama has succeeded to a degree that would have made Richard Nixon blush. Indeed, Obama may be the president Nixon always wanted to be. ... His unilateral actions are redrawing the lines of separation in our system in a way that I believe could prove destabilizing and even dangerous in the future.”
When it comes to war, Turley notes that Nixon’s impeachment included the charge that he evaded Congress’ sole authority to declare war by invading Cambodia. Obama “went even further in the Libyan war, declaring that he alone defines what is a ‘war’ for the purposes of triggering the Constitutional provisions on declarations of Congress. That position effectively converts the entire provision in Article 1, Section 8 of the Constitution (‘Congress shall have power to...declare War’) into a discretionary power of the president.”
With regard to immigration, health care, welfare, education and drug policy, the president has suspended, waived and rewritten laws, including the Affordable Care Act. That law required the employer mandate to begin this year. But the administration wrote a new law, giving to companies of a certain size a delay until 2016 and stipulating that other employers must certify that they will not drop employees to avoid the mandate. Doing so would initiate criminal perjury charges. In this case, the president, by executive action, created a new crime.
The president’s decision to exchange five high-ranking Taliban leaders for Army Sgt. Bowe Bergdahl in May violated a federal law that required him to notify Congress 30 days in advance of releasing detainees at Guantanamo Bay, Cuba.
With regard to immigration, health care, welfare, education and drug policy, the president has suspended, waived and rewritten laws, including the Affordable Care Act.
The Dream Act, a legislative proposal first introduced in Congress in 2001, would provide conditional permanent residence to certain illegal immigrants who graduated from U.S. high schools and arrived in the country as minors. Congress never passed this legislation. Yet, in June 2012, President Obama declared that, even though it was not the law, he would implement it.
In June, the U.S. Supreme Court invalidated President Obama’s use of recess appointments. In January 2012, the president appointed senior officials to the Consumer Financial Protection Bureau and the National Labor Relations Board, taking advantage of a period when the Senate was not actively in session. Legal experts regarded the move as risky, given that historically recess appointments have been made when the Senate is formally out of session for an expanded period.
“This White House chose to take on that battle and has now received some diminution in the power Obama can pass on to his successors,” said John Clooney, a former assistant to the solicitor general and deputy general counsel at the Office of Management and Budget. “That's an object lesson for the White House who risked triggering the separation of powers question.”
For the president to, in effect, execute laws which have been proposed in Congress, but never enacted, such as the Dream Act, is to reject our system of Constitutional government.
The Court said the president has the authority to make appointments only to vacancies that arise during a recess, which would significantly limit a president’s ability to use the recess appointment power.
Justice Antonin Scalia noted that, as the current case showed, presidents have become enamored of the recess appointments because this relieves them of the more difficult task of persuading the Senate to give its “advice and consent” as is constitutionally required. The recess power is an “anachronism,” he wrote, from a time when the Senate was away for long periods of time and not be easily convened for business.
Scalia wrote: “The need it was designed to fill no longer exists, and its only remaining use is the ignoble one of enabling the President to circumscribe the Senate’s role in the appointment process.”
Sen. Ron Johnson (R-WI) calls for a national discussion of “the erosion of legislative authority within the evolving model of the federal government. There has been a dramatic shift of authority toward presidential powers and the emergence of what is essentially a fourth branch of government, a vast network of federal agencies with expanded legislative and judicial power.”
The power of the president seems to grow, regardless of which party is in power. Richard Nixon, we remember, was accused of putting a handful of reporters under government surveillance. The Obama administration seems to have gone further, admitting to putting Associated Press reporters and a Fox News reporter under surveillance.
There has, under the Obama administration, been repeated obstruction of Congress. It has refused to provide evidence sought by oversight committees in a variety of scandals, such as those relating to Benghazi and the IRS. In one case, Congress voted to move forward with criminal contempt charges against Attorney General Eric Holder, which Holder’s own Justice Department blocked.
In testimony before Congress, James Clapper, the Director of National Intelligence, lied under oath about government surveillance programs. He later admitted that he had given the least untruthful statement he could think of. The Obama administration has refused to investigate Clapper for perjury, and has made no move toward firing him. More recently, the administration was accused of searching Senate computers in an investigation of the CIA and trying to intimidate Congressional investigators.
“In my view, the president has not faithfully executed the law,” says House Speaker John Boehner (R-OH), who is planning a civil law suit against the White House.
“Congress is being reduced to an almost decorative element in governance, free to approve but not to block presidential demands.”
—Jonathan Turley, professor of Public Interest Law, George Washington UniversityProfessor Jonathan Turley declares that, “This downward spiral may have reached its ultimate expression this year. Framers such as Madison would have been mortified by the scene from the most recent State of the Union address. Obama appeared before a joint session of Congress (and members of the Supreme Court) to announce that he intended to go it alone in achieving his policy goals, refusing to yield to the actions of Congress. One would have expected an outcry, or, at least stony silence, from a branch that was being told it would be circumvented. Instead, there was rapturous applause that bordered on a collective expression of institutional self-loathing.”
For the president to, in effect, execute laws which have been proposed in Congress, but never enacted, such as the Dream Act, is to reject our system of Constitutional government. “Under this approach,” states Turley, “Congress is being reduced to an almost decorative element in governance, free to approve but not to block presidential demands.”
The Founding Fathers would be disappointed to see the growth of government, the increase in executive power, and the erosion of our system of checks and balances. But they would not be surprised. In a letter to Edward Carrington, Thomas Jefferson wrote that, “The natural progress of things is for liberty to yield and government to gain ground.”
To the question, is it too much to ask the president to faithfully execute the laws and respect our Constitutional system of checks and balances, the answer, for President Obama, seems to be, “Yes, it is too much to ask.” How the Congress, the courts and the American people will respond, remains to be seen.
The Conservative Curmudgeon is copyright © 2014 by Allan C. Brownfeld and the Fitzgerald Griffin Foundation. All rights reserved. Editors may use this column if this copyright information is included.Allan C. Brownfeld is the author of five books, the latest of which is The Revolution Lobby (Council for Inter-American Security). He has been a staff aide to a U.S. Vice President, Members of Congress, and the U.S. Senate Internal Subcommittee.
He is associate editor of The Lincoln Reveiw and a contributing editor to such publications as Human Events, The St. Croix Review, and The Washington Report on Middle East Affairs.
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