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Friday, July 06, 2012

Since when did an imperial presidency became a liberal desiderata?

Traditionally, cries against an imperial presidency have risen from liberal camps when a Republican was president. The term first originated in 1973 when Arthur M. Schlesinger, Jr. wrote to criticize what were considered Nixon's expansion of power and the growth of the executive branch. We heard such cries again when George W. Bush was president to criticize his use of executive power to fight the war on terror. But, as Kimberley Strassel writes today, President Obama has vastly encroached on legislative powers in the domestic sphere where provisions exist for the legislative and executive branches to work together. Obama's practice, however, is to try to go ahead anyway and establish by executive fiat that which he could not get by working with the legislative branch. The list of such actions is quite long.
Put another way: Mr. Obama proposes, Congress refuses, he does it anyway.

For example, Congress refused to pass Mr. Obama's Dream Act, which would provide a path to citizenship for some not here legally. So Mr. Obama passed it himself with an executive order that directs officers to no longer deport certain illegal immigrants. This may be good or humane policy, yet there is no reading of "prosecutorial discretion" that allows for blanket immunity for entire classes of offenders.

Mr. Obama disagrees with federal law, which criminalizes the use of medical marijuana. Congress has not repealed the law. No matter. The president instructs his Justice Department not to prosecute transgressors. He disapproves of the federal Defense of Marriage Act, yet rather than get Congress to repeal it, he stops defending it in court. He dislikes provisions of the federal No Child Left Behind Act, so he asked Congress for fixes. That effort failed, so now his Education Department issues waivers that are patently inconsistent with the statute.

Similarly, when Mr. Obama wants a new program and Congress won't give it to him, he creates it regardless. Congress, including Democrats, wouldn't pass his cap-and-trade legislation. His Environmental Protection Agency is now instituting it via a broad reading of the Clean Air Act. Congress, again including members of his own party, wouldn't pass his "card-check" legislation eliminating secret ballots in union elections. So he stacked the National Labor Relations Board (NLRB) with appointees who pushed through a "quickie" election law to accomplish much the same. Congress wouldn't pass "net neutrality" Internet regulations, so Mr. Obama's Federal Communications Commission did it unilaterally.

In January, when the Senate refused to confirm Mr. Obama's new picks for the NLRB, he proclaimed the Senate to be in "recess" and appointed the members anyway, making a mockery of that chamber's advice-and-consent role. In June, he expanded the definition of "executive privilege" to deny House Republicans documents for their probe into the botched Fast and Furious drug-war operation, making a mockery of Congress's oversight responsibilities.
He has also exercised such executive force over the private sector as we saw when his auto bailout ignored traditional bondholders' rights in order to channel more money to the unions. He is also using the Department of Justice to exercise federal power over the states.
Don't like Arizona's plans to check immigration status? Sue. Don't like state efforts to clean up their voter rolls? Invoke the Voting Rights Act. Don't like state authority over fracking? Elbow in with new and imagined federal authority, via federal water or land laws.
Obama defends his actions by saying that he tried to work with Congress but they wouldn't support what he wanted to do so he went ahead anyway. He brags about this on the stump and promises more of it in a second term. And many of his unitary actions are done to reward special interest groups such as unions and Hispanics so as to win reelection.

Is this really how the Founding Fathers designed our government so that the executive could ignore the branch of government closest to the people as well as state governments and private business in order to impose his will and reward favored special interests? No one could argue so, not even someone who was a lecturer on constitutional law at the University of Chicago.

This is an entire theme of the Obama presidency. Even laws that were crafted in the legislature left major decisions up to unelected members of the executive branch such as the Secretary of HHS or regulatory agencies such as the NLRB. If a Republican had taken such actions, liberals would be howling from the rooftops.

The least the Republican candidate for the presidency can do is point these out. Mitt Romney has a law degree. Surely he understands the usurpation of powers represented by Obama's actions. Romney says he believes in America; how about he defend the separation of powers that make our Constitution the model of balanced government that it is.

UPDATE: Charles Krauthammer also writes today about Obama's imperial overreach and convoluted defense of that overreach as demonstrated in the Arizona immigration Supreme Court decision. Unanimously, the Court rejected the Obama administration's argument that, just because they're disinclined to enforce federal immigration laws, it should be unconstitutional for a state to enforce those laws.
Beyond being logically ridiculous (If a state law is unconstitutional because it's out of sync with the federal government's current priorities, does it become constitutional again when federal policy changes?), this argument is "an astounding assertion of federal executive power," wrote Justice Samuel Alito in a concurrence.
The Obama Justice Department is suggesting that "a state law may be pre-empted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency's current enforcement priorities. Those priorities, however, are not law. They are nothing more than agency policy."
And there's the rub: the Obama administration's inability to distinguish policy from law. This becomes particularly perverse regarding immigration when, as Justice Antonin Scalia points out, what the administration delicately calls its priorities is quite simply a determination not to enforce the law as passed.
This is what makes so egregious the Obama claim that Arizona is impermissibly undermining federal law. "To say, as the court does," writes Scalia regarding those parts of the law struck down by the majority, "that Arizona contradicts federal law by enforcing applications of the Immigration Act that the president declines to enforce boggles the mind."
Consider this breathtaking cascade: An administration violates its constitutional duty to execute the law by deliberately refusing to enforce it. It then characterizes its non-enforcement as simply establishing priorities. It then tries to strike down a state law on immigration on the grounds that it contradicts federal law – by actually trying to enforce it!
And there is a parade of horribles from Obama actions that demonstrate his overreach.
Regardless of results, however, Obama's presumption is Olympian. He takes America into a war in Libya with U.N. approval, but none from Congress. Yet that awful Bush had the constitutional decency to twice seek and gain congressional approval before he initiated hostilities.
The Department of Health and Human Services issues Obamacare regulations treading so heavily on the free-exercise rights of Catholic institutions that Obama's own allies rebel. The new regulation concocted to tame the firestorm blithely orders private insurers to provide free contraceptives to employees of the objecting religious institutions.

By what possible authority does a president order private companies to provide free services? To say nothing of the 1,200 Obamacare waivers granted with royal arbitrariness according to the (political) whims of an HHS secretary.
And now immigration. Obama adopts a policy of major non-enforcement of the immigration law – a variant of the very DREAM Act he could not get through even a Democratic Congress – and promulgates it unilaterally, while his Justice Department claims the right to invalidate state laws that might in some way impinge on that very non-enforcement.

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