Article 2, Sec. 3 of the Constitution charges the President "shall take care that the Laws be faithfully executed." It doesn't say that he "should" execute the laws of the United States; it uses the imperative "shall."
Nor, does the Constitution say that the President can pick and choose to enforce some of the laws, or just the ones he likes.
Nor, does the Constitution give the President the authority to create new laws. Article 1, Sec. 1 is clear on that point; "All legislative Powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives."
But for Barack Obama the limits of the Constitution matter very little; particularly so the separation of powers that the Founders crafted as a check-and-balance against an unhealthy concentration of power in one branch of the government. In fact, Obama has publicly derided the Constitution as a "charter of negative liberties" and pledged to work to "break free from the essential constraints placed by the Founding Fathers."
In a recent column Charles Krauthammer addressed the issue of a President who "writes his own laws." Krauthammer affixes the title befitting of the President's lawless nature: "Caudillo in Chief." After a litany of grievances as examples document his assertions, Krauthammer concludes:
Such gross executive usurpation disdains the Constitution. It mocks the separation of powers. And most consequentially, it introduces a fatal instability into law itself. If the law is not what is plainly written, but is whatever the president and his agents decide, what's left of the law?
What's the point of the whole legislative process — of crafting various provisions through give-and-take negotiation — if you cannot rely on the fixity of the final product, on the assurance that the provisions bargained for by both sides will be carried out?
Consider immigration reform. The essence of any deal would be legalization in return for strict border enforcement. If some such legislative compromise is struck, what confidence can anyone have in it — if the president can unilaterally alter what he signs?
Yet this president is not only untroubled by what he's doing, but open and rather proud. As he tells cheering crowds on his never-ending campaign-style tours: I am going to do X — and I'm not going to wait for Congress.
That's caudillo talk. That's banana republic stuff. In this country, the president is required to win the consent of Congress first.
At stake is not some constitutional curlicue. At stake is whether the laws are the law. And whether presidents get to write their own.
The editors at Investor's Business Daily picked up on the issue, too. Following is what they call "just a small sampling" of a "Lengthy Legacy of Lawlessness."
Aug. 14, 2013:The Obama administration delayed the provision in ObamaCare to cap out-of-pocket health care costs, picking and choosing parts of the law to enforce, which is to exceed its authority.
July 17, 2013:The 4th Circuit Court of Appeals joined the federal appeals courts in D.C. and Philadelphia in ruling President Obama's National Labor Relations Board recess appointments — who by law must be approved by Congress — were unconstitutional. Thus far, the president has ignored the ruling.
July 1, 2013:The Obama administration unilaterally decided to delay the employer mandate provision of ObamaCare for a year, which is to provide information to the feds about the extent of an applicant's insurance. Never mind that the law states the mandate must go into effect on Jan. 1, 2014 — they are now relying on the "honor system" from applicants to determine if they are qualified for subsidies.
June 25, 2013:The Supreme Court ruled in Shelby County v. Eric Holder that Section 4 of the Voting Rights Act is "unconstitutional" and that "the formula can no longer be used as a basis for subjecting jurisdiction to preclearance." Instead of complying with the ruling, Holder filed suit to order Texas to submit to preclearance, in defiance of Congress' authority to legislate and the Supreme Court's authority to rule on the constitutionality of the law.
June 15, 2012:The Obama administration announced it will stop deporting illegal immigrants under the age of 30 in a "deferred action" policy to circumvent immigration laws. This comes after Congress rejected a similar measure about a year ago. Since then, more than 500,000 illegals have received the deferment and only 20,000 have been rejected. As for the law-abiding applicants who have been waiting in line, well, that's Obama's idea of "lawfulness."
May 20, 2013:A Washington Post article revealed that Fox News reporter James Rosen was investigated by the DOJ, which subpoenaed his phone records and emails in direct contravention of the First Amendment under the pretense of a leak investigation.
May 13, 2013:AP reported the DOJ secretly collected phone records of AP reporters and editors, a move completely outside the realm of law. Even the AP — which up until then had been pretty submissive to the Obama agenda — was appalled by the breach.
May 10, 2013:The IRS revealed it targeted conservative groups applying for tax-exempt status beginning in March 2010, a direct targeting of political opponents through the tax laws. It's one of the crimes that led Congress to impeach President Nixon.
May 3, 2011:When asked when he first heard of Operation Fast and Furious, Attorney General Eric Holder falsely testified, "I'm not sure of the exact date, but I probably heard about Fast and Furious for the first time over the last few weeks." Head of the National Drug Intelligence Center Michael Walther told Holder about Fast and Furious in a July 2010 memo. Subsequent revelations showed he knew all along.
March 27, 2012:EPA issued final rules regulating greenhouse gas emissions on electric utilities that require power plants to use nonexisting carbon capture-and-control technology to meet new emission standards, in defiance of the Congress' rejection of cap-and-trade legislation.
April 23, 2012:The administration postponed Medicare Advantage cuts by calling them a "demonstration project" and used funds not approved by Congress to delay effects of those cuts before the election.
March 1, 2011:Attorney General Holder lied to Congress, saying "decisions made in the New Black Panther Party case were made by career attorneys in the department." Associate A.G. Thomas Perrelli, an Obama political appointee, overruled a unanimous recommendation for prosecution by DOJ attorneys.
Feb. 3, 2010:Judge Martin Feldman held the Obama administration in contempt for re-imposing an offshore drilling moratorium that was struck down by the courts.