This article first appeared in the June issue of Townhall Magazine.
"You know I taught constitutional law for 10 years, I take the Constitution very seriously,” then-Sen. Barack Obama said while campaigning in Lancaster, Pennsylvania, on March 31, 2008.
“The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all,” Obama continued, “and that’s what I intend to reverse when I’m president of the United States of America.”
More than six years later, we now know that Obama never had any intention of taking the Constitution seriously. Instead, he has violated its core provisions at every turn, launching unauthorized wars, rewriting legislation without Congress’ input, and even creating brand new laws out of whole cloth.
When Obama first uttered the phrase, “If Congress won’t act, I will,” he functionally declared war on the U.S. Constitution. And unless Republicans start standing up to Obama’s lawlessness, our republic may never be the same.
EMBRACING BUSH’S WAR POWERS
Obama made his 2008 promise to “reverse” Bush’s power grab after a supporter questioned why Obama had voted for reauthorization of the Patriot Act in 2006 after he had promised to vote against the legislation when he was a U.S. Senate candidate in 2003.
In classic Obama fashion, Obama denied all responsibility for his vote. Instead he blamed Bush for issuing executive orders that ignored the limits of existing federal law. Now, six years later, Obama is still presiding over much the same National Security Administration spying program that he once pronounced a “grave threat” to civil liberties, and the Guantanamo Bay detention facility that he said threatened America’s “moral stature in the world,” is also still running strong.
Additionally, not only has Obama embraced the war powers he once derided Bush for claiming, but he has expanded them substantially.
After the 9/11 terrorist attacks, Bush went to Congress for an Authorization for Use of Military Force that he then used as justification for attacking Afghanistan. And a year later, Bush again went to Congress for another AUMF, this time seeking permission to attack Iraq. You can be for or against one or both of these wars, but you cannot argue that Bush did not “go through Congress” before starting them.
Obama, on the other hand, doesn’t believe that he needs to seek permission from Congress before he attacks another country.
Before launching Operation Odyssey Dawn against Libya on March 19, 2011, Obama secured authorization from both the Arab League and the United Nations. But at no point did he ever push for a debate, or vote, in the United States Congress.
Now it is true that presidents have taken military action without specific authorization from Congress in the past. In 1986, for example, President Reagan also bombed Libya. And in 1998, President Clinton launched cruise missiles into Afghanistan and Sudan.
But those actions were both brief and limited responses to specific terrorist attacks on Americans. Reagan bombed Libya for a single day as punishment for their involvement in a bombing of American servicemen in Berlin. Clinton’s cruise missile attack was also limited to a single day and was in direct response to the bombings of American embassies in Kenya and Tanzania.
Obama’s attack on Libya, however, lasted seven months, one week, and five days. Countless Libyan military personnel were killed during the campaign, as well as more than 60 civilians according to the United Nations Human Rights Council.
But unlike Reagan and Clinton, who were responding to specific attacks on Americans, Obama acted without any provocation. Libya had not recently attacked America, and was not threatening to, when Obama started bombing the country.
There simply is no constitutional justification for Obama’s unilateral bombing of Libya. Which is why top lawyers at both the Pentagon and the Justice Department told Obama he had no legal right to attack Libya as broadly as he was planning without authorization from Congress.
But instead of deciding the issue democratically, Obama overruled his lawyers and ordered the DOJ to write a new legal memo justifying his decision.
WHEN PRESIDENTS CAN ACT
Presidents have tested the boundary between the executive and legislative powers since the birth of the Constitution. Few tested it as boldly as the 33rd president, Harry Truman, who authorized his Secretary of Commerce Charles Sawyer to seize the nation’s steel mills at the height of the Korean War.
The day after Truman issued Executive Order 10340 effectively nationalizing the nation’s steel industry, lawyers for Youngstown Sheet & Tube Co., along with lawyers from five other major steel companies, immediately filed suit.
Less than a month later, in Youngstown Sheet & Tube Co. v Sawyer, a 6-3 majority ruled against Truman’s seizure, holding that he had no legal authority to seize the nation’s steel mills. Writing for the majority, Justice Hugo Black explained, “The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.”
Black went on to note that if Truman wanted to avoid a strike, the Taft-Hartley Act, which Truman had attempted to veto, specifically created a mechanism for him to do so. But Truman completely ignored that route.
Instead, Truman issued an order that Black said, “sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution.” [emphasis added]
“In the framework of our Constitution,” Black continued, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.”
In other words, it does not matter how many executive orders a president issues. All that matters is that each executive action must have a basis in either the Constitution itself, or an act of Congress.
Unfortunately, far too often, Obama has chosen to completely ignore Congress, and instead act as lawmaker. The following are just a few of Obama’s most egregious constitutional transgressions.
FORCING COMMON CORE ON OUR NATION’S SCHOOLS
The No Child Left Behind Act of 2001 may have passed both chambers of Congress with broad bipartisan support, but since implementation it has become steadily unpopular.
Conservatives hate the law because it dramatically expands the size and scope of the federal government and inflicts millions of hours of additional paperwork on local schools. Liberals don’t like it because it ties federal funding to standardized tests and allows some parents to choose where their children go to school.
Under NCLB, public schools must take yearly standardized tests to determine what percentage of students are meeting state standards. And each year, the percentage of students in each school district who meet those standards must go up. By 2014, 100 percent of all students are, by law, required to meet those standards.
But a 100 percent passage rate was never possible. And as more and more schools were deemed “failing” under NCLB, pressure grew on Congress to amend the law.
Obama could have easily worked with Democratic majorities to rewrite NCLB, or axe it entirely, during his first two years in office. Instead, he chose to focus on health care and cap and trade.
So when Republicans took control of the House in 2011, it was too late to write Common Core into NCLB’s standards.
Instead, on August 5, 2011, Education Secretary Arne Duncan announced he was inviting states to apply for waivers from NCLB, but only if those states agreed to first implement Obama’s preferred education policies, including Common Core. This was a wholesale runaround Congress.
“It is one thing for an administration to grant waivers to states to respond to unrealistic conditions on the ground or to allow experimentation and innova- tion,” Brookings Institution Director for Education Policy Russ Whitehurst wrote at the time, “It is quite another thing to grant state waivers conditional on com- pliance with a particular reform agenda that is dramatically different from existing law.”
GRANTING AMNESTY TO ILLEGAL IMMIGRANTS
In 2008, then-Sen. Barack Obama told Univision host Jorge Ramos, “I cannot guarantee that it is going to be in the first 100 days. But what I can guarantee is that we will have in the first year an immigration bill that I strongly support.”
Of course, we now know that Obama’s first year in office came and went without any immigration reform. Same with the second year. And the third. By Obama’s fourth year in office, he was again campaigning for the White House, and he needed something to distract from his broken immigration promise.
So on June 15, 2012, Obama announced his Deferred Action for Childhood Arrivals policy for illegal immigrants. Under DACA, those who could produce some evidence that they came to the U.S. before they were 16 and had been in the country for at least five years would be given “deferred action” status, which allows them to obtain a work permit, get a social security number, and a driver’s license.
These provisions just happened to almost exactly mirror the Development, Relief, and Education for Alien Minors Act (more commonly known as the DREAM Act) that failed to pass the Senate and never even got a vote in the House in 2010.
How could Obama simply enact a law that Congress never passed?
Obama claimed that he has the “prosecutorial discretion” to deport or not deport whomever he wishes.
And it is true, presidents have always enjoyed the authority to favor some immigrants over others for foreign policy, political, or humanitarian reasons. But those acts of limited discretion were always done on an ad hoc, case-by-case basis. They were not a wholesale prescriptive rewrite of immigration policy, let alone one that had been specifically rejected by Congress.
If Obama’s DACA program is legal, then there is nothing stopping him from granting full amnesty to every illegal immigrant in the country yesterday, today, or tomorrow.
REWRITING OBAMACARE FOR POLITICAL GAIN
Like Bush’s NCLB, Obama’s Affordable Care Act has only gotten more unpopular as it has been implemented. Looking to minimize this unpopularity, Obama has repeatedly delayed key aspects of the law, even though he has no authority to do so.
First, on July 2, 2013, the Treasury Department issued regulations delaying Obamacare’s job killing employer mandate until the end of 2014. But Section 1513(d) of the ACA clearly states, “The amendments made by this section shall apply to months beginning after Dec. 31, 2013.” And no other provision in Obamacare gives Obama the authority to change that date.
Pressed to identify a legal authority for the delay, the White House pointed to Section 7805(a) of the Internal Revenue Code which gives the Treasury Secretary the power to “prescribe all needful rules and regulations for the enforcement of this title, including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue.”
If that section sounds exceedingly broad, it is. Before Obama, it had only been used twice to delay other tax legislation. And both of those delays were for less than a year (six months and one month), only applied to minor portions of much broader legislation, and were issued the same year the original legislation passed.
By contrast, the Obamacare employer mandate delay has already been expanded past 201, involves a major cost saving feature of the underlying legislation, and was issued more than three years after the original law passed.
And that wasn’t Obama’s only Obamacare rewrite. Facing intense political blowback after his “if you like your health care plan you can keep it” promise was exposed as a lie last October, Obama issued another delay in December.
This time the Department of Health and Human Services issued a “guidance” letter to states informing them that insurance companies could continue selling the same individual health insurance plans they do now, but only to those individuals who currently own such policies, and only for another year. Pressed again to identify the legal basis for this executive action, the White House could not identify any legislative authority, and instead claimed they had “enforcement discretion” to implement any law as the Supreme Court allowed in Heckler v Chaney.
But Heckler created no such power.
In Heckler, death row inmates sued the Food and Drug Administration in an effort to force them to apply existing regulations to the use of drugs used for lethal injection. The Court found that the FDA had discretion over how to enforce their existing regulations.
But the latest Obamacare fix is not just a decision not to enforce existing regulations. It creates brand new rules, including a requirement for what insurers must include in their policy cancellation letters.
More importantly though, if Obama can get away with citing Heckler to rewrite Obamacare, he can cite it to rewrite any law, at any time he wants, for whatever reason.
CAN THE CONSTITUTION BE SAVED?
Obama will still be president for another two and a half years and it is virtually guaranteed he will do more violence against the Constitution. Amnesty advocates have grown extremely impatient with Obama’s inaction on immigration and they know his DACA program has no logical limit. If Congress does not grant illegal immigrants amnesty by legislation before 2016, Obama will do it by administrative fiat.
What if anything can the American people do? The steel mill owners sued when Truman stole their plants, why can’t we?
The biggest barrier to holding Obama accountable through the courts is the legal doctrine of standing. In order to establish legal standing, Sen. Mike Lee (R-UT) recently told The Weekly Standard, “You’ve got to show that the plaintiff has suffered an injury in fact, a concrete, particularized harm that’s fairly traceable to the conduct of the defendant, and it is capable of being redressed or remedied by the court.”
Proving direct and individualized harm from Obama’s lawlessness is difficult. How can any one person prove DACA harmed their job prospects? Or that a denied NCLB waiver harmed their education?
Pressed to identify a remedy for Obama’s executive overreach, Lee told The Weekly Standard, “I think the most effective, efficient way of doing it, the way that sort of maximizes the deterrent effect without significantly disrupting government in general is for Congress to use its spending power in such a way that withholds funds in areas in which the president has overreached.”
“The Founding Fathers contemplated that,” Lee continued, “James Madison discussed it in Federalist 57. And it’s per- haps the most effective, least intrusive tool for Congress to respond to executive overreach.”
Establishment Republicans may not like to hear it, but Lee is right. The only way to stop Obama’s lawlessness is to cut off funding for the agencies he is using to abuse the law. No more Education Department funding until NCLB is rewritten. No more DHS funding until DACA is halted. No more HHS funding until the Obamacare delays are undone.
These would all be messy fights for congressional Republicans, but the alternative would be to admit their own irrelevance.
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