Like King James II, the president decides not to enforce laws he doesn’t like. That’s an abuse of power.
By MICHAEL W. MCCONNELL
President Obama’s decision last week to suspend the employer mandate of the Affordable Care Act may be welcome relief to businesses affected by this provision, but it raises grave concerns about his understanding of the role of the executive in our system of government.
Article II, Section 3, of the Constitution states that the president “shall take Care that the Laws be faithfully executed.” This is a duty, not a discretionary power. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.
This matter—the limits of executive power—has deep historical roots. During the period of royal absolutism, English monarchs asserted a right to dispense with parliamentary statutes they disliked. King James II’s use of the prerogative was a key grievance that lead to the Glorious Revolution of 1688. The very first provision of the English Bill of Rights of 1689—the most important precursor to the U.S. Constitution—declared that “the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.”
To make sure that American presidents could not resurrect a similar prerogative, the Framers of the Constitution made the faithful enforcement of the law a constitutional duty.
The Justice Department’s Office of Legal Counsel, which advises the president on legal and constitutional issues, has repeatedly opined that the president may decline to enforce laws he believes are unconstitutional. But these opinions have always insisted that the president has no authority, as one such memo put it in 1990, to “refuse to enforce a statute he opposes for policy reasons.”
Attorneys general under Presidents Carter, Reagan, both Bushes and Clinton all agreed on this point. With the exception of Richard Nixon, whose refusals to spend money appropriated by Congress were struck down by the courts, no prior president has claimed the power to negate a law that is concededly constitutional.
In 1998, the Supreme Court struck down a congressional grant of line-item veto authority to the president to cancel spending items in appropriations. The reason? The only constitutional power the president has to suspend or repeal statutes is to veto a bill or propose new legislation. Writing for the court in Clinton v. City of New York, Justice John Paul Stevens noted: “There is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes.”
The employer mandate in the Affordable Care Act contains no provision allowing the president to suspend, delay or repeal it. Section 1513(d) states in no uncertain terms that “The amendments made by this section shall apply to months beginning after December 31, 2013.” Imagine the outcry if Mitt Romney had been elected president and simply refused to enforce the whole of ObamaCare.
This is not the first time Mr. Obama has suspended the operation of statutes by executive decree, but it is the most barefaced. In June of last year, for example, the administration stopped initiating deportation proceedings against some 800,000 illegal immigrants who came to the U.S. before age 16, lived here at least five years, and met a variety of other criteria. This was after Congress refused to enact the Dream Act, which would have allowed these individuals to stay in accordance with these conditions. Earlier in 2012, the president effectively replaced congressional requirements governing state compliance under the No Child Left Behind Act with new ones crafted by his administration.
The president defended his suspension of the immigration laws as an exercise of prosecutorial discretion. He defended his amending of No Child Left Behind as an exercise of authority in the statute to waive certain requirements. The administration has yet to offer a legal justification for last week’s suspension of the employer mandate.
Republican opponents of ObamaCare might say that the suspension of the employer mandate is such good policy that there’s no need to worry about constitutionality. But if the president can dispense with laws, and parts of laws, when he disagrees with them, the implications for constitutional government are dire.
Democrats too may acquiesce in Mr. Obama’s action, as they have his other aggressive assertions of executive power. Yet what will they say when a Republican president decides that the tax rate on capital gains is a drag on economic growth and instructs the IRS not to enforce it?
And what of immigration reform? Why bother debating the details of a compromise if future presidents will feel free to disregard those parts of the statute that they don’t like?
The courts cannot be counted on to intervene in cases like this. As the Supreme Court recently held in Hollingsworth v. Perry, the same-sex marriage case involving California’s Proposition 8, private citizens do not have standing in court to challenge the executive’s refusal to enforce laws, unless they have a personal stake in the matter. If a president declines to enforce tax laws, immigration laws, or restrictions on spending—to name a few plausible examples—it is very likely that no one will have standing to sue.
Of all the stretches of executive power Americans have seen in the past few years, the president’s unilateral suspension of statutes may have the most disturbing long-term effects. As the Supreme Court said long ago (Kendall v. United States, 1838), allowing the president to refuse to enforce statutes passed by Congress “would be clothing the president with a power to control the legislation of congress, and paralyze the administration of justice.”
Mr. McConnell, a former judge on the U.S. Court of Appeals for the Tenth Circuit, is a professor of law and director of the Constitutional Law Center at Stanford Law School and a senior fellow at the Hoover Institution.
A version of this article appeared July 9, 2013, on page A13 in the U.S. edition of The Wall Street Journal, with the headline: Obama Suspends the Law.
June 6, 2013 By Greg Richards
In testimony before the House Ways and Means Committee Monday, we heard from Alexis de Toqueville’s “little battalions” of social relationships, political pedagogy, and cultural argument — i.e., the soul of American civic society. These are the ones who were abused by the IRS in being denied timely consideration of their applications for tax-exempt status to put them on a level playing field with the forces of the left. And shocking testimony it was, well worth watching on C-SPAN (www.c-span.org, then look for “Conservative Groups Testify on IRS Scrutiny”).
In an essay three days ago in American Thinker, Herbert E. Meyer (who, as vice chairman for National Intelligence Estimates at the CIA, in the face of overwhelming conventional wisdom, including from the Agency itself, identified for William Casey and President Reagan that the Soviet Union, far from being a permanent presence on the world scene, was in fact decaying from inside and on the verge of collapse, thus providing the basis for Reagan’s strategy to win the Cold War) suggested that there would never be a smoking gun in the IRS conspiracy because (a) it is not necessary and (b) that is not the way things work at the top. The leftists are all working from the same playbook.
Sander Levin, the ranking Democratic member of House Ways and Means, in what is doubtless his understanding of what went wrong, said in his opening statement, “The handling of these applications was gross mismanagement by the IRS Exempt Organization Division.”
But it wasn’t. It was a well-executed mission.
Remember the status of the Tea Party. It had sprung up spontaneously after Rick Santelli on CNBC struck a nerve by articulating the unfairness of the bailouts by the federal government. The Tea Party had no organization. It had no single leader or leadership structure. And yet it struck the 2010 elections like a tuna hitting a fishing line and returned control of the House to the Republicans.
So when the left in all its components — and remember that there are no stronger advocates of high bureaucratic pay and big government than those who work for it — looked out at the coming landscape for the 2012 election, what was the greatest threat? Another strike at the polls by the Tea Party, which at that time did not show up on conventional measurements of political activity and power.
The Tea Party and its confrères represented a real but unmeasurable threat not just to the Obama administration per se, but to the leftist project in general. It was a new, anti-leftist force that had to be brought under control.
What is the real attitude of the IRS to conservatives? Contempt. Which we saw from both Mr. Shulman and Mr. Miller, former and removed acting commissioners of the IRS, last week.
Question to Douglas Shulman, IRS commissioner for five years until late last year: “It appears you visited the White House 95 times [since increased] during your tenure as IRS Commissioner. What did you do on those visits?”
Mr. Shulman: “Participated in the Easter Egg Roll with my children.”
But if we are not likely to get a smoking gun and if the IRS has a culture of contempt for conservatives, what can we expect to get from these hearings? A lot. Not least the vocabulary to deal with the crisis.
Targeting of conservative groups and suppressing of conservative participation in the public forum by the IRS…
…is not “a mistake.”
…is not “a failure.”
…is not “due to incompetence.”
…is not “a breakdown.”
Rather, it is a manifestation of the leftist project. A leftist storm has blown through the IRS, and we are seeing in the hearings the debris line left by that storm. But now that the IRS has been infested by the leftist project, cleaning up the debris is not enough.
If conservative cultural and political activity is to continue unmolested in this country, the IRS must be eliminated. It is too disdainful of American mores, and it is too powerful. Neither of those things will change with a new commissioner and whatever is the final disposition of Lois Lerner.
Of course, the nation must have a revenue collection agency. As a first cut, perhaps the new agency would have six regional and independent divisions. They would be located in offices around the country, and there would be no single IRS commissioner in Washington.
The six agency heads would report to Congress every six months on the activities of their agencies on penalty of perjury. There would be new offices of ombudsman for each regional agency. The ombudsmen would testify to Congress along with the agency heads every six months as to the number and type of complaints they had received and what had been the disposition of those complaints.
All salaries in the new six agencies would start at 10% below the equivalent levels in the current IRS. There would be no union in the six agencies, because the agencies must represent the interests of the country and that alone. Something like that.
The current IRS is sick and corrupt. This is what the Democrats, even the ones appalled by the activities just revealed, do not understand. They think this behavior is isolated. It isn’t. It is the leftist project come to fruition, promoting unlimited power for government and brooking no opposition.
The limited government of enumerated powers created by the Founding Fathers and embedded in the Constitution is illegitimate in the eyes of the left. That is why this mission was not “a mistake.”
We must act on this knowledge, or we will be complicit in the dispossession of our liberty. They say about power, “Use it or lose it.” We must act while we still can.
November 5, 2012 By Lee DeCovnick
B.H. Obama has issued 139 executive orders since becoming president. Some are fairly benign; many are deeply troubling, specifically as to the wholesale consolidation of emergency powers into the office of the presidency. The newest executive order is a breathtaking assault on entire sections of Constitution and the rights, freedoms, and liberties of all Americans, carefully hidden within the stultifying and banal language of bureaucratic doublespeak.
On October 26, 2012, eleven days before our national election, with tropical depression Sandy bearing down on thirteen East-Coast states and the Libyan disaster still a smoking morass of obfuscation, cover-ups, and unanswered questions, the White House’s Friday news dump included EO 13629. Titled “Establishing the White House Homeland Security Partnership Council,” this EO should chill the freedom-loving souls of all Americans.
Not surprisingly, the MSM has not mentioned EO 13629 — not anywhere. No mention in the NY Times, the Washington Post, or on any of the alphabet news and cable networks. The blogosphere, liberal and conservative (except Hannity), has had almost no mention of EO 13629. This EO was purposefully buried by the White House and ignored by the alternative press.
Have I got your attention? Then I’ll invite you to leave American Thinker for a couple of minutes and read the EO for yourself (only 1,232 words), and then return here.
All right, show of hands — who almost fell asleep digging through the tons of gravel to find the nasty gems? Yeah, me too. It takes a very close reading of this EO to understand what is actually going on here.
Let’s first look first at paragraph three:
The National Security Strategy emphasizes the importance of partnerships, underscoring that to keep our Nation safe “we must tap the ingenuity outside government through strategic partnerships with the private sector, nongovernmental organizations, foundations, and community-based organizations. Such partnerships are critical to U.S. success at home and abroad, and we will support them through enhanced opportunities for engagement, coordination, transparency, and information sharing.” This approach recognizes that, given the complexities and range of challenges, we must institutionalize an all-of-Nation effort to address the evolving threats to the United States.
A couple of things stand out. The EO quotes “The National Security Strategy,” an Orwellian document released by the White House in May of 2010 that advocates, in so many words, the end of American sovereignty and the ascendancy of a U.N.-based “transnational government.” It’s most famous line includes “We are now moving beyond traditional distinctions between Homeland and National Security.”
What to make of the line “… we must institutionalize an all-of-Nation effort to address the evolving threats to the United States”? What an eerie phrase: “all-of-Nation.” A Google search shows that phrase was also used in the “National Strategy For Biosurveillance,” a tyrant’s Christmas wish list, that was a July 2012 White House document, and Presidential Policy Directive 8, a FEMA directive on National Preparedness from March of 2011. Odd and troubling coincidences, to say the least.
Bottom line: the National Security Strategy encourages partnerships with non-governmental organizations, foundations, and community-based organizations. Got it.
So what exactly is the EO plan for these partnerships?
There is established a White House Homeland Security Partnership Council (Council) to foster local partnerships — between the Federal Government and the private sector, nongovernmental organizations, foundations, community-based organizations, and State, local, tribal, and territorial government and law enforcement — to address homeland security challenges.
The actionable clause: “to address homeland security challenges.” We’ll get to the chest-beating 900-pound gorillas in the room in a moment, but two significant items immediately demand our attention.
Did you notice that “homeland security” was not capitalized? It is usually referred to as the “Department of Homeland Security.” The usage in the EO of homeland as noun, but not a proper noun, is not a mistake. Yellow-highlight that line; we will return to it later. Also, the nongovernmental organizations (NGOs) are not specified as necessarily being of American origin or even of a pro-American outlook. They could also refer to foreign NGOs, as these are prominent progressive political activist groups that are strongly supported by the American-hating Byzantine bureaucracies of the U.N. and EU.
Let’s move on. Membership of this Council is quite specific and requires a surprisingly narrow skill set:
… the Council shall be composed of Federal officials who are from field offices of the executive departments, agencies, and bureaus (agencies) that are members of the Steering Committee established in subsection (c) of this section, and who have demonstrated an ability to develop, sustain, and institutionalize local partnerships to address policy priorities.
So Council members must come from the field offices of the executive departments and have demonstrated an ability to develop, sustain, and institutionalize local partnerships. Council members, except those whose agency already deals with security issues, evidently are not required to have a background in security, law enforcement, criminal justice, or the judiciary system; all that is required is an ability to develop and institutionalize partnerships. Is the council carefully recruiting government bureaucrats who can train, mold, and imprint a bureaucratic mindset onto these partners for the Council’s purposes? If not, what is meant by “institutionalize”? And why are the recruited members supposed to be selected from “field offices” rather than the usual Potomac swamps?
Closely reading this EO feels like putting together a jigsaw puzzle, blindfolded. Perhaps that was that the intent.
Let’s go on. Okay, these White House Council members are selected by the Steering Committee. Huh? What Steering Committee?
The Steering Committee shall include a representative at the Deputy agency head level, or that representative’s designee, from the following agencies:
(i) Department of State;
(ii) Department of the Treasury;
(iii) Department of Defense;
(iv) Department of Justice;
(v) Department of the Interior;
(vi) Department of Agriculture;
(vii) Department of Commerce;
(viii) Department of Labor;
(ix) Department of Health and Human Services;
(x) Department of Housing and Urban Development;
(xi) Department of Transportation;
(xii) Department of Energy;
(xiii) Department of Education;
(xiv) Department of Veterans Affairs;
(xv) Department of Homeland Security;
(xvi) Office of the Director of National Intelligence;
(xvii) Environmental Protection Agency;
(xviii) Small Business Administration; and
(xix) Federal Bureau of Investigation.
Notice that this Steering Committee and thus the Council has no congressional or judicial representation — i.e., no representation from the other co-equal branches of government. No constitutional checks and balances. The EO sets no term limits, no overview process, and no restraints on policies, authority, and structures. Is it normal for the government to tightly integrate such group into the structure of government itself? Well, yes — on some social and political issues such as voter registration or global warming, as examples. But this EO goes far beyond the accepted governmental role in integrating such organizations because the purpose of this bastardized conglomeration is homeland and national security, not a typical social or political issue. This EO is simply a blank check to build an executive-branch bureaucracy that actually plans to transform and integrate selected extra-governmental NGOs, foundations, and community-based organizations into a robust and unaccountable national security hybrid.
Americans need to be continually vigilant — this EO could swiftly metatasize and do untold damage to our nation and its people. Anyone else think that this EO is flagrantly unconstitutional? It gets worse.
The Council shall be chaired by the Assistant to the President for Homeland Security and Counterterrorism …
That would be John Brennan, a veteran CIA apparatchik, Obama’s loyal terrier, and America’s current “terrorism and drone” czar. Brennan supports reaching out to the “moderate elements” of Hezb’allah and has an exceptionally rocky relationship with the truth and reality in discussing this administration’s Middle East policies.
And more bad news:
At the invitation of the Chair, representatives of agencies not listed in subsection (c) of this section or other executive branch entities may attend and participate in Steering Committee meetings as appropriate.
That is Washington bureaucratese for the Obama czars. So, will the Steering Committee be well-represented with Obama’s hand-picked czars? Why not? No one will be looking.
Finally, what is the stated mission of the Council?
… advise the Chair and Steering Committee members on priorities, challenges, and opportunities for local partnerships to support homeland security priorities, as well as regularly report to the Steering Committee on the Council’s efforts …
And what are the homeland security priorities this Administration seeks to implement? In web searches through some nasty swamps, using homeland with a lowercase h, I stumbled on this site. An answer, not surprisingly, was found in a report from a George Soros-supported foundation, the Center for American Progress. This all but forgotten February 2008 report, “Homeland Security Policy Priorities for the Next Administration and Congress,” includes this “Key Action” item that was pretty interesting.
Create a civilian homeland security corps.
Finally the penny drops.
We recall this quote from Obama’s July 2, 2008 speech:
We cannot continue to rely on our military in order to achieve the national security objectives that we’ve set. We’ve got to have a civilian national security force that’s just as powerful, just as strong, just as well-funded.
Let’s turn our attention to the pair of 900-pound gorillas sitting in the room, and why they are important.
First, our immediate concern should reflect that this EO’s bastardized security hybrid is hardly unique in modern history. The German Schutzstaffel, the infamous SS, and the Soviet KGB, Committee for State Security, both began as hybrid security organizations. They were deliberately created outside traditional governmental roles, exclusively for the consolidation and implementation of power on behalf of a single individual. We should not forget that Americans and their forefathers have experienced and soundly rejected such authoritarian abuses, such as the Salem witch trials and McCarthyism. But only the naive can believe that such a breakdown could not happen here in 21st-century America.
Second, the list of NGOs, foundations, and community-based organizations ripe for “institutionalization” would likely read like a Democratic who’s-who of hard-left organizations. Is there any doubt that this administration and its czars would seek partnerships with La Raza, ACORN and its renamed offshoots, Move On, PETA, the Center for American Progress, Media Matters, CAIR and other Islamic organizations, the Sierra Club, AFL-CIO, the SEIU, and the AFT and CTA?
As these groups may become institutionalized into a national security hybrid, new orders will come down from the council, and information will flow up to Washington.
The new homeland security corps primary mission would likely become the monitoring and reporting of unacceptable political and social activities — city by city, neighborhood by neighborhood, block by block, house by house.
Could this corps become a latter-day Gestapo, heavily armed with cell-phone technology, linked databases, personal tablets, and bio-identification card readers?
We all can read this EO. Some may have different interpretations of what they have read. Considering the well-established trend of B.H. Obama’s cold disregard of constitutional checks and balances, and both the longstanding desire and a short-term need to create a White House framework for a domestic-security apparatus, EO 13629 may be forever linked in history with such infamous documents such as the Wannsee Protocol and the recently revealed files of the Spanish Inquisition.