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Quick Analysis

The Dangerous Attack on Constitutional Government

The New York Analysis of Policy and Government begins a two part series on how the Constitution’s checks and balances are being ignored by leftist politicians and pundits. 

The United States is in great danger from those who advocate, condone or simply ignore the trend towards defying Constitutional mandates and practices.

America is about to turn a corner in which a movement that has engaged in the practices of ignoring Constitutional provisions and applying a different standard of law for the powerful, while pursuing the supremacy of government by power and influence rather than by rule of law, seeks to retain the White House.

The spokespersons for that movement have not been shy. In an interview reported by MRCTV  Secretary of State John Kerry hailed Obama “for his ability to ‘circumvent Congress’ in getting parts of his energy policy enacted.”  Whether acting domestically in his assaults on the coal industry, or internationally in his acceptance of the Paris Climate “accord,” the White House ignored the legislative branch and the Constitutional provisions which require its assent. In essence, the President acted as a one-man government.

The reduction of the Constitution from its position as the controlling law of the land has been an ongoing and increasing threat. While many presidents have at times quietly exceeded their authority, the blatant and open institutionalization of this practice during the past eight years has been extreme and exceptional.

Whether in direct statements from Mr. Obama that he would “not wait for Congress to Act,” and that he had a “pen and a phone” and would not hesitate to use them if Congress did not acquiesce to his will,  or in the use of the IRS to harass opposition political groups, or the overarching influence of major Democrat political donors such as Tom Steyer over the Environmental Protection Agency, or the transformation of the Department of Justice into a partisan agency, the exclusion of Constitutional practices in favor of “strong man” tactics has been dire and dangerous.

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While Adams concentrates on the Justice Department’s role in election law, the same problems exist in that agency’s misdeeds regarding Hillary Clinton’s email violations. The indictment of other figures for committing deeds similar to but far lesser in scope than the former Secretary of States’ email crimes, while refusing to indict Clinton, is a clear example of how political considerations rather than the objective enforcement of the law motivates government agencies in the Obama-Clinton era.

In many ways, the overwhelming influence of partisan political interests over federal agencies during the Obama Administration resembles the role of Communist Party commissars over the Soviet State or the Gestapo in Nazi Germany.  (Before pundits go wild and claim we are comparing the Obama Administration to Communists or Nazis, which we are not, the point we are making is that the extraordinary influence of political interests over nonpartisan ones in government agencies does have historical antecedents in those prior and unsavory regimes.)

Historical examples provide clear warnings of what can happen when central governing documents containing strictly observed guarantees of rights do not exist. American slavery provides one such illustration. Africans transported to the colonies were at first considered indentured servants, similar to those from Europe. There was a reasonable expectation that after a stated period of time, they would be freed.  But the elites of the time—wealthy property owners, and those claiming to have scientific expertise in the matter—found it more convenient to keep blacks in bondage.  Absent a guarantee of rights, slavery was born. Even after the practice ended following the Civil War, a willingness to ignore the newly enacted Thirteenth Amendment (“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”) deprived blacks of many of their rights.

It should be noted that the same political party that supported slavery and then, in defiance of the Constitution, segregation, now supports the President and other politicians that espouse defying  Constitutional mandates.

The Report concludes tomorrow

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NY Analysis

The Misuse of Executive Orders

As this report goes to press, President Obama is expected to make a significant statement concerning his proposal  to reduce carbon emissions from America’s 600 coal-based energy facilities.

Even before the details are released, significant controversy has occurred based on several key points: whether the president has the authority to enact sweeping and substantive measures without the consent of Congress; whether the proposals will be too costly for the depressed U.S. economy (which shrunk 1% during the first quarter of 2014);  whether reducing American energy output will place both the U.S. and our allies in a weakened position; and finally, whether the science upon which the theory of human induced climate change rests is, in fact, accurate.

This week, The NEW YORK ANALYSIS OF POLICY & GOVERNMENT briefly examines the President’s promised use of Executive Orders for the Environmental program. The regulations are expected to be significant, forcing American power plants to cut carbon emissions, and imposing vast costs on the U.S. economy. The President believes that he can engage in actions that will have the full force of law without the consent of Congress.

Weakening the President’s position is his prior failure to guide proposed environmental laws through Congress in his first term. Critics can maintain that the White House at first attempted to comply with the appropriate Constitutional methods, but resorted to an unconstitutional utilization of Executive Orders when he didn’t succeed.

U.S. Constitution: Article 1, Section 1: 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.

 President Obama, 2013: Where Congress is unwilling to act, I will take whatever administrative steps that I can in order to do right by the American people.

EXECUTIVE ORDERS

Article II, Section I of the Constitution vests executive power in the President. While there is no mention in the Constitution of executive orders, as chief executive, the President of the United States clearly requires the unilateral ability to take certain actions to fulfill his duties. The President’s role in seeing that federal laws are executed requires no consultation with the other two branches of government. It would be absurd to expect that every deployment of troops, every regular or normal daily operation of federal agencies, and every other normal administrative process be subjected to direct Congressional oversight.

There have been periods of history when Congress has been relatively lenient in its oversight of the President’s use—or abuse—of executive orders. During the establishment of Franklin D. Roosevelt’s New Deal during the Great Depression, Humorist Will Rogers   remarked that “that Congress doesn’t make laws anymore, they just wave at the bills as they go by.”

The online law journal thelegality.com  notes that “While the mandate of Article II seems broad, it also limits the president’s power to only directing the actions of the executive branch.  For example, [former] President Bush’s E.O. 13435 (regarding the limited use of stem cells in research) have a limited effect because they only reach government agencies…The Executive is not a legislator…He is not above the law.”

Although Congress tends not to challenge most executive orders, it has met with success on some occasions when doing so. Several executive orders issued by President Clinton were struck down by the Court in reaction to Congressional objections.

Justice Hugo Black,  in the case Youngstown Sheet & Tube Co. v. Sawyer wrote that an executive order (1) “must stem either from an act of Congress or from the Constitution itself” and (2) an executive order is on dubious ground if it’s “incompatible with the express or implied will of Congress.”

In restricting then-President Truman’s ability to engage in actions which had the impact of legislation rather than mere administrative action, the Court held that an Executive Order not authorized by the Constitution or laws of the United States, cannot stand, and exercises of Presidential authority which have the effect of lawmaking cannot stand because the Constitution vests such power in Congress alone.

There is a keen difference between administrative actions in fulfillment of the law and actually taking steps that affect the law itself, or, indeed, have the same impact as law. This controversy has been evident in the White House’s actions concerning the Affordable Health Care Act (Obamacare.)  The President’s unilateral action in deciding which portions of the law to enforce and which to ignore until sometime in the future when it is more politically expedient to do so has merited extensive and appropriate criticism.

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Writing in Forbes earlier this year, James Powell noted that:

“Apparently President Obama has become convinced that he can make magic with that pen he keeps talking about, the one he plans to use for signing executive orders to revive his beleaguered presidency.  Executive orders are irresistible, because a president doesn’t have to propose anything, debate the issues, endure hearings or solicit votes.  An executive order can be issued in a few minutes — behind closed doors and away from bright lights… Many executive orders are in a twilight zone of dubious constitutional legitimacy if not open defiance of the Constitution, especially when they amount to lawmaking without congressional approval…”

John Malcolm, director of the Edwin Meese III Center for Legal and Judicial Studies, has written in a Heritage publication   that “President Obama has shown no qualms about taking unilateral actions that bypass Congress and ignore important separation of powers principles that are an essential safeguard of our liberty.”

Joel Pollack, writing in Breitbart, provides three criticisms of President  Obama’s use of executive orders:

“The first is that Obama is using executive orders and actions to alter his own legislation. …The second way in which Obama’s abuse of executive power is different is that he has done it to prevent the legislature from acting…the president issued his “Dream Act by fiat” in 2012 not just because Congress wouldn’t pass his version of immigration reform, but to outflank Sen. Marco Rubio (R-FL), who was preparing his own version, embarrassing Obama among Latino voters…The third way in which Obama’s behavior is unusual is that he commands sweeping executive power on some issues while arguing, on other issues, that he has no power to act… There is no constitutional doctrine behind the president’s executive orders, actions, and omissions…”

 

Attorney Gary Wickert, examined some of President’s Obama’s executive orders:

“In the spring of 2012, President Obama issued an aggressive string of executive orders to combat what he viewed as hopelessly-deadlocked Congress. Some of his more controversial, and arguably unconstitutional executive orders are as follows:Directed the Justice Department to stop defending the Defense of Marriage Act;Gave states waivers from federal mandates if they agreed to education overhauls;Changed significant provisions of and the timing of Obamacare;Declared an anti-gay-rights law unconstitutional;Reshaped immigration policy by ordering  the federal government to halt deportation of certain illegal immigrants.
Each unilateral action by the president substituted for a failed legislative proposal.  ‘I’ve got a pen, and I’ve got a phone,’ he said. However, under the Constitution, that is not the way things are supposed to work. “

The President’s use of his authority to implement environmental measures has been a particular source of criticism. The Congressional newspaper The Hill noted that Attorneys general  in 17 states have contended that “the Environmental Protection Agency has overreached in pursuit of President Obama’s plan to counter the effects of climate change via federal regulation.” They maintain that the “EPA, if unchecked, will continue to implement regulations which far exceed its statutory authority to the detriment of the States, in whom Congress has vested authority under the Clean Air Act, and whose citizenry and industries will ultimately pay the price of these costly and ineffective regulations…”

CONCLUSION

The dueling sides for and against the President’s carbon emissions plan will disagree on the specific merits of the proposal.  The far more important debate, however, will have nothing to do with the details of this program and everything to do with whether the United States will continue to be governed by Constitutional provisions clearly calling for a series of checks and balances on the authority of the chief executive.

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Quick Analysis

Ignoring the Constitution

Recently, Rep. Luis Gutierrez, an Illinois Democrat, said that every organization in the nation should ignore federal immigration law until President Obama’s immigration reform program is enacted. That worrisome statement by an elected official encapsulates the growing disdain for the law and the Constitution itself by those on the political left.

It’s a question so basic that it seems odd that it has to be asked at all: shouldn’t the Constitution and other laws be followed by our elected officials?

Over the past five years, the basic document governing the United States, acknowledged worldwide as the greatest political achievement of humanity, has been increasingly ignored.  The President says he can’t wait for the mandated legislative role of Congress, and will use Executive Orders instead of the legislative process mandated by the Constitution. “I have a pen and a phone and I intend to use them,” he has proclaimed.

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It’s not just Washington that has forgotten the Bill of Rights.  Numerous municipalities completely violate the 2nd Amendment right to bear arms with impunity.  Many also effectively nullify federal law by proclaiming themselves “sanctuary cities” where immigration laws will not be enforced.

Once the process of ignoring the Constitution and other laws is begun,  the rise of an oppressive government that rejects all the rights of its citizenship will soon follow.