Bending the Law Until It Breaks – Part 1. Barack Obama Disregards the Constitution and the Law

By Jim Edsall

On August 2, 2016, President Obama declared Republican nominee Donald Trump “unfit to serve as President.” He called into question Trump’s temperament, preparedness, and knowledge of “our constitutional traditions and the rule of law.” Trump will certainly have to convince the voters regarding his temperament and preparedness. That was fair game. But, there was palpable irony in the President’s condescension regarding the Constitution and the law. During his presidency Barack Obama has egregiously disregarded both the Constitution and the law, and Hillary Clinton has expressed a desire to do the same, and worse.

The U.S. Constitution is renowned for its system of checks and balances between three branches of government – Legislative, Executive, and Judicial. It requires the Congress and the President to work together to make the nation’s laws. The Supreme Court decides whether those laws are Constitutional. This was designed to prevent the concentration of power in one branch of government, or one person. Post-Revolutionary War Americans did not want another king, and they saw to that in the drafting of the Constitution.

The President’s chief duty under Article 2, Section 3 of the Constitution, is to “take care that the laws be faithfully executed.” In taking the oath of office, a president swears to faithfully execute the Office of President of the United States and to the best of their ability “preserve, protect, and defend the Constitution of the United States.”

Over the past seven-and-a-half years, President Obama has sought to expand executive powers far beyond those granted in the Constitution, and has failed to faithfully execute the laws. He has issued executive orders unilaterally changing the laws, circumventing the constitutional role of the Congress. His defenders say that he has issued fewer executive orders than many of his predecessors, but the number[1] is not the chief concern – his executive orders have all too often been unconstitutional. He has refused to enforce laws, and on his watch one federal agency unfairly targeted his political opponents, while another issued regulations that infringed on the jurisdiction of the States. This is a dangerous abuse of power.

Even if you believe that Barack Obama is advancing social, economic, racial, and environmental justice, and want Hillary Clinton to do the same, the ends do not justify the means when they endanger our system of government, and our freedom. 

The President Circumvents Congress — ObamaCare  

The Affordable Care Act (ACA), commonly known as “ObamaCare”, was signed into law in March 2010. Since that date, the Obama Administration has made over thirty changes to the law without the consent of the Congress, including extending the deadline for the employer mandate, granting exemptions for favored unions, and reimbursing health insurance companies for cost-sharing losses with funds that were not authorized in the law. In November 2014, the U.S. House of Representatives took the unprecedented step of suing the President for violating the Constitution’s separation of powers. In May 2016, a federal court ruled in favor of the House, finding that the President’s unauthorized reimbursements to insurers had unconstitutionally infringed on Congress’s role in making and changing laws, and its exclusive power to tax and spend.[2]

The President Violates First Amendment Rights — Contraceptive Mandate

When the President and the Democrats in Congress passed ObamaCare in 2010, they imposed a mandate that employers with 50 or more full time employees must provide health insurance coverage that includes contraceptives. This disregarded the concerns, and the First Amendment rights, of religious business owners. The list of mandated contraceptives included abortifacients — “morning after” pills — which prevent implantation of a fertilized egg after conception. The owners of a privately-owned corporation, Hobby Lobby, sued for relief under the Religious Freedom Restoration Act (RFRA). The company’s owners, and many other religious people (including your author), believe that each human life is sacred because the Holy Scriptures tell us we are made in the image of God.[3] We believe it is not our right to end a life that God has created, even one in the womb. RFRA requires the government to use the least burdensome means to accomplish its goals when a fundamental right such as freedom of religion is impacted. In June 2014, the Supreme Court ruled against the Obama administration, preventing them from imposing hundreds of thousands of dollars in penalties.[4] The court held that the government could directly provide free contraceptives to women if it decided to, instead of unconstitutionally forcing religious people to do so.[5]

 The President Encroaches on the Power of the Senate — Recess appointments  

In June 2012, while the Senate was taking brief breaks but officially remained in session, President Obama stunningly attempted to declare the Senate to be in recess so he could appoint three new members to the National Labor Relations Board. The Supreme Court unanimously ruled against the President, setting aside those appointments. Justice Stephen Breyer stated, “The Senate is in session when the Senate says it is in session.”[6]

The President Ignores His Own Law — Bowe Bergdahl and the Taliban 5

In August 2014, the Obama administration released five high-level Taliban prisoners from the military detention center at Guantanamo Bay, Cuba in exchange for Army Sergeant Bowe Bergdahl, without notifying Congress in advance of the exchange. Bergdahl had deserted his unit in Afghanistan and been captured by, or joined, the Taliban. The Government Accounting Office (GAO) subsequently determined that the administration had violated the Defense Appropriations Act,[7] a federal law signed by President Obama, which required him to notify Congress prior to any prisoner release.

An Executive Agency Unlawfully Burdens the States — EPA

In October 2015, the Environmental Protection Agency (EPA), an executive branch agency under President Obama, attempted to impose regulations requiring all States to make drastic reductions in greenhouse gases produced by electric power plants. The effect would have been to shut down hundreds of coal-fired plants, causing costly upheaval in energy markets. In February 2016, the Supreme Court ruled EPA’s actions unconstitutional, granting a stay against the implementation of those regulations. The court held that Congress had not authorized EPA to intrude on an area of “traditional state responsibility.” They declared EPA’s actions “a blatant act of commandeering that leaves the States no choice but to alter their laws and programs governing electricity generation and delivery to accord with federal policy,” and stated, “if the Court does not enter a stay, the Plan will continue to unlawfully impose massive and irreparable harms upon the sovereign States.”[8]

An Executive Agency Targets Political Opponents — IRS  

Under Section 501(c)(4) of the Internal Revenue Code, citizens’ groups with a political message can receive tax-exempt status when their primary purpose is “social welfare.”[9] In 2012, the IRS, another executive branch agency under the President, targeted conservative groups with names such as “Tea Party” and “Patriot” for special scrutiny, delaying their applications for tax-exempt status until after the presidential election.[10] In May 2013, IRS admitted their misconduct. The administration’s defenders attempted to deflect public concern, saying progressive groups were also targeted for scrutiny. However, only 30% of progressive groups’ applications were delayed, while 100% of “Tea Party” applications were.[11] The President first called the targeting outrageous,[12] but later denied it had even happened.[13] Then, in 2015, his administration refused to release 500 documents related to the targeting scandal.[14] As recently as August 2016, a federal court ordered IRS to prove that it is not continuing to discriminate against conservative groups, as many are still awaiting decisions about their applications years after applying.[15]

The President and DOJ Attempt to Change Anti-Discrimination Laws – Transgender Bathrooms

In May 2016, The Department of Justice, an executive agency under President Obama issued “guidance,”[16] requiring all schools in the nation to allow students to use the bathroom that matches their gender identity, or face loss of billions of dollars in funding.[17] Parents of Virginia school children have sued, concerned that minor children could be emotionally affected, or physically endangered, by exposure to the opposite biological sex in school bathrooms and showers.[18] Twenty-one other states have also filed suit.[19] Current U.S. anti-discrimination laws — Title 7 and Title 9 — address gender, but not gender identity. Instead of attempting to work with Congress to amend current laws as required by the Constitution, the Obama administration attempted to unilaterally impose executive decrees and penalties. The President and the Department of Justice do not have the unilateral authority to change U.S. anti-discrimination laws. The Supreme Court has issued a stay on implementation of administration’s policies until they can hear the cases.[20]

The President Usurps the Role of the Supreme Court — DOMA 

The Defense of Marriage Act (“DOMA”) was signed into law by President Bill Clinton in 1996. It defined marriage as between one man and one woman, and allowed the federal government not to recognize marriages between same-sex partners should they be authorized by the States. Laws that might be considered discriminatory are examined with “strict scrutiny” by the Supreme Court.[21] In February 2011, Attorney General Eric Holder announced that the Obama administration would no longer defend DOMA in federal court. Holder declared, “The President has concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet the [strict scrutiny] standard and is therefore unconstitutional.”[22] In 2013, the Supreme Court did, in fact, declare DOMA unconstitutional,[23] but that was the Court’s constitutional role. It is not in the President’s power to declare a law unconstitutional.

The President Circumvents the Senate — Climate Change

In December 2015, 174 nations meeting in Paris announced a landmark agreement on climate change.[24] President Obama called it “The best chance to save the one planet we have.”[25] The President has since announced that he will sign the Paris agreement without presenting it to the Senate for ratification.[26] The Constitution requires all treaties to be ratified by a two-thirds vote in the Senate. A treaty is any “agreement between two or more independent states.”[27] Administration officials deny that the Paris agreement is a treaty, asserting that the President can sign it as an “executive agreement” because its “targets aren’t binding.”[28] However, the agreement requires each nation to report specific commitments to the secretariat of the United Nations Framework Convention on Climate Change (UNFCCC).[29] These commitments would dramatically increase regulatory burdens on the States, and increase energy costs with no assurance of results.[30] This is far beyond the scope of a mere executive agreement – it is a treaty that must be voted on by the people’s representatives in the Senate as required by the Constitution.

The President Circumvents the Congress – National Monuments

In August 2016, President Obama designated an 87,500 acre section of Maine woodlands as “The Katahdin Woods and Waters National Monument.”[31] This marks the twenty-fourth time President Obama has acted unilaterally to create a national monument. The area designated is larger than Maine’s Acadia National Park.[32] Creation of a national park requires joint action by the President and the Congress.[33] Designation as a national monument precludes logging, mining, hunting and road building in the area being dedicated. The commercial, recreational and conservation interests of the people should have been weighed in Congress, and park status voted on, as the Constitution requires.

The President Circumvents Congress Again and Refuses to Enforce the Laws — Immigration

As head of the Department of Justice, the President is the nation’s chief law enforcement officer, and it is his constitutional duty to enforce the nation’s immigration laws.[34]

In July 2010, the State of Arizona passed a law requiring police to investigate any person reasonably suspected of being in the country illegally and turn them over to federal immigration officials.[35] President Obama filed suit against the state. He claimed that federal enforcement agencies don’t have the resources to enforce all immigration violations, and announced that his administration would focus only on “individuals who pose a safety threat.”[36]

In June 2012, he issued an executive order ending the deportation of immigrants who had entered the United States illegally while under the age of 16 (DACA – Deferred Action for Childhood Arrivals), declaring that this would make U.S. immigration law “more fair, more efficient, and more just.”[37] At that time, Sen. Marco Rubio (R-FL) was working with Senate colleagues on legislation called “The Dream Act” which would have lawfully implemented that policy. The President’s unilateral action circumvented the legislative process.

Then, in November 2014, he issued another executive order, suspending deportation of more than 4 million undocumented immigrants who have a child who is an American resident (DAPA – Deferred Action for Parents of Americans). Jeh Johnson, Secretary of the Department of Homeland Security, justified this as “prosecutorial discretion,” a mechanism in the law that allows for case-by-case leniency. This blanket grant of legal status to millions of people without the approval of Congress went far beyond the scope of prosecutorial discretion — it was a refusal to faithfully execute the nation’s immigration laws.

Twenty-six states sued the President for creating an unconstitutional burden on them in violation of federal law. The federal courts ruled in favor of the states, granting an injunction preventing implementation of both executive orders. In June 2016, a divided U.S. Supreme Court voted 4 to 4 on appeal, keeping the injunction in place.[38]

Beyond being a violation of the Constitution, DACA has created a humanitarian crisis, as thousands of Central American children have been transported by train to the U.S.-Mexico border in hopes that they will be allowed to enter and stay in the U.S.[39] Many of these children and their parents have been bussed to U.S. cities and dropped off there,[40] or shipped to detention camps.[41]

Defenders of the President claim that he has deported more undocumented immigrants than any previous president. However, it was his own policies that drew in many of those he has since deported.[42] And, the rate of deportations has dramatically decreased in his second term, plunging 42% in 2015 compared to 2012.[43]

The Danger of an Imperial Presidency

Prior to issuing his executive orders, President Obama admitted that he did not have the authority to change existing immigration law. He said, “I am not a king”, “I am not the emperor of the United States”, “the executive branch’s job is to enforce and implement those laws”, and “there is a path to get this done and that is the Congress.”[44] Then he reversed course, and took unilateral action.

In a recent appearance before Congress, constitutional law professor Jonathan Turley of George Washington University was asked, “How does the president’s unilateral modification of an act of Congress affect both the balance of power between the political branches and the liberty interests of the American people?” Turley’s responded:

            “The danger is quite severe. The problem with what the president is doing is that he’s not simply posing a danger to the constitutional system. He’s becoming the very danger the Constitution was designed to avoid. That is the concentration of power in [any] single branch. … We have what many once called an imperial presidency model of largely  unchecked authority.[45]

What was Hillary Clinton’s response to the federal courts ruling President Obama’s executive orders unconstitutional? She expressed complete disregard, saying, “I want to do more to make sure that DACA and DAPA and all of the changes that have occurred continue, and would like to try to do more on behalf of the parents of dreamers who are not necessarily included.”[46]

Presidents must uphold the law and respect the Constitution’s limits on their power. The States, the Congress, and the federal courts should not have to step in and stop them. Such egregious executive overreach threatens our system of government, and our freedom.

Conclusion

The drafters of the Constitution created three co-equal branches of government with a vital purpose in mind: to prevent the consolidation of power in any one branch, or any one person. They had experienced the oppression of being under a despotic ruler with unchecked power. They fought the Revolutionary War to be free from the tyranny of a king. Once free, they established a new form of government with limited executive power, and with elected representatives in Congress giving the people a voice. When a President goes around the Congress, he is going around the people.

In taking the oath of office, a president swears to protect, preserve and defend the Constitution, and to faithfully execute the laws. Ignoring the nation’s laws and refusing to enforce them is an unconscionable violation of the President’s sworn constitutional duty. Throughout his presidency, Barack Obama has egregiously disregarded the Constitution and the law, jeopardizing the balance of power between the three branches of government. Administration officials and executive agencies under his leadership have followed suit. And, Hillary Clinton, his preferred successor, has expressed a desire to do the same, and worse.

To those who approve of Barack Obama’s actions — a president who ignores the limits on his or her power may not always use that power in ways that you like. President Obama plans to implement the Paris climate change agreement without ratification by the Senate; what is to keep him from doing the same with the Trans-Pacific Partnership, a trade deal that compromises U.S. sovereignty and threatens to shift more American jobs overseas? The Senate would have to sue him again to stop him.

The nation was rightly outraged when Richard Nixon used the IRS to target political opponents in the Watergate era. How can IRS targeting of Tea Party groups be justifiable today? Current U.S tax law allows conservative groups to obtain tax exempt status provided their primary purpose is social welfare. If the President and his appointees at IRS don’t like current U.S. tax law, they must work with Congress to change it. Selective enforcement of the law to favor political allies and punish political opponents is not justice.

Suppose a Republican president should one day decide to unilaterally open the Alaska National Wildlife Reserve (ANWR) to oil drilling, contending that the additional oil supply will reduce fuel costs, saving the lives of the poor and elderly in the coming winter — a noble intention. The response from the Left would be apoplectic, and I would agree — not because of the policy, as the long-proposed drilling area is equivalent to a postage stamp on a football field — but on the basis of law. Until the law protecting ANWR is repealed through joint action by the President and the Congress, the President is constitutionally required to uphold that law.

Presidents must use the “bully pulpit” to gain public support for their policies. If they can’t get everything they want from Congress they have to work out a compromise. It is hard work to win over the American people and their representatives in Congress, but that is what the Constitution requires. Disregarding the Constitution’s requirements is a dangerous step toward tyranny.

In our system of government, if a law seems unjust the people have recourse to change it. We can press the President and the Congress to repeal and replace that law. If they won’t take action, we can work to replace those officials in free and open elections. We can start a grass-roots movement to initiate a new constitutional amendment. And, if any of our fundamental rights are violated, we can seek relief in the federal courts. With all these legal and constitutional means of recourse, we must not allow our elected officials to ignore, circumvent, or unilaterally change the laws in violation of the Constitution, no matter how much we support their policy goals.

We, the People,[47] must not allow the executive branch, or the president at its head, to become a dictatorial, imperial power. We must not allow them to expand executive power by usurping it from the other branches of government. We must not allow them to apply the laws unfairly against their political opponents. We must hold our elected officials to the highest standards of honesty and integrity. We must require them to enforce and faithfully execute our nation’s laws. We must not allow them to bend the law until it breaks.

If we turn a blind eye to abuse of power in the name of achieving social, economic, racial and environmental justice, then injustice and tyranny will instead be our legacy, and we will forfeit our birthright of freedom.

Jim Edsall, Attorney at Law

September 5, 2016

About the author

Jim Edsall is an attorney in Banner Elk, NC. He graduated cum laude in 1996 from Regent University Law School in Virginia, where he received the Award for Distinguished Academic Achievement in Public Laws as the top student in Constitutional Law, Common Law, International Law, and Legislation, served as class president, and was an editor of the Law Review.

Footnotes:

[1]  http://www.presidency.ucsb.edu/data/orders.php — Bill Clinton issued 364, George W. Bush 291, and Barack Obama 249, so far.

[2] https://www.cnn.com/2016/05/12/politics/obamacare-court-challenge-republicans

[3] Genesis 1:27

[4]  https://www.law.cornell.edu/uscode/text/42/chapter-21B

[5] http://www.scotusblog.com/case-files/cases/sebelius-v-hobby-lobby-stores-inc/

[6] https://www.washingtonpost.com/politics/supreme-court-rebukes-obama-on-recess-appointments/2014/06/26/e5e4fefa-e831-11e3-a86b-362fd5443d19_story.html

[7] http://abcnews.go.com/Politics/wireStory/gao-pentagon-violated-law-bergdahl-swap-25072782, August 20,2014).

[8]  http://www.nytimes.com/2016/02/10/us/politics/supreme-court-blocks-obama-epa-coal-emissions-regulations.html?_r=0

[9] https://www.irs.gov/charities-non-profits/other-non-profits/social-welfare-organizations

[10] https://www.washingtonpost.com/business/economy/irs-admits-targeting-conservatives-for-tax-scrutiny-in-2012-election/2013/05/10/3b6a0ada-b987-11e2-92f3-f291801936b8_story.html

[11] http://www.politifact.com/punditfact/statements/2014/jun/22/dona-brazile/donna-brazile-no-conspiracy-here-irs-targeted-libe/

[12] http://thehill.com/homenews/administration/299303-obama-calls-targeting-or-right-by-irs-outrageous

[13]        http://www.washingtontimes.com/news/2015/jul/21/obama-defends-irs-tea-party-targeting-didnt-happen/

[14]          http://thehill.com/business-a-lobbying/232249-feds-wont-release-irs-targeting-documents

[15]  http://www.washingtontimes.com/news/2016/aug/5/court-irs-must-prove-stopped-tea-party-targeting/

[16]           http://www.cnn.com/2016/05/12/politics/transgender-bathrooms-obama-administration/

[17]    http://www.usatoday.com/story/news/politics/2016/05/16/transgender-bathroom-rule-matter-dignity-obama-says/84460430/

[18]         http://www.motherjones.com/politics/2016/08/supreme-court-blocks-court-ruling-allowing-transgender-student-use-bathroom-his-cho

[19]         https://www.washingtonpost.com/local/education/another-10-states-sue-obama-administration-over-bathroom-guidance-for-transgender-students/2016/07/08/a930238e-4533-11e6-88d0-6adee48be8bc_story.html

[20] http://www.reuters.com/article/us-usa-court-transgender-idUSKCN10E2KS

[21]             https://www.law.cornell.edu/wex/strict_scrutiny

[22]           http://www.cbsnews.com/news/obama-administration-will-no-longer-defend-doma/

[23] https://www.washingtonpost.com/politics/supreme-court/2013/06/26/f0039814-d9ab-11e2-a016-92547bf094cc_story.html

[24] http//www.washingtonpost.com/news/energy-environment/wp/2016/04/11/obamas-fast-move-to-join-the-paris-climate-agreement-could-tie-up-the-next-president/?utm_term=.e72f1acd2a85

[25]             http://www.cnn.com/2015/12/12/world/global-climate-change-conference-vote/

[26]             http://www.politico.com/story/2016/08/climate-pact-us-china-g20-227600

[27]             http://thelawdictionary.org/treaty/

[28]             http://www.cnn.com/2015/12/12/world/global-climate-change-conference-vote/

[29]             http://www.heritage.org/research/reports/2016/03/the-paris-agreement-is-a-treaty-and-should-be-submitted-to-the-senate

[30]             http://www.nationalreview.com/article/434412/paris-climate-agreement-americans-foot-bill-no-effect-climate

[31]             http://www.nytimes.com/2016/08/25/us/obama-maine-katahdin-woods-and-waters.html?_r=0

[32]             https://www.nps.gov/acad/learn/management/statistics.htm

[33]  Article IV, Section 3 of the Constitution – see https://www.nps.gov/training/essentials/html/law_policy_topic.html

[34]             https://www.uscis.gov/laws/immigration-and-nationality-act

[35] http://www.reuters.com/article/us-obama-immigration-lawsuit-idUSTRE6653Q320100707

[36]      http://www.cnn.com/2012/06/25/politics/immigration-administration-reaction/

[37]             http://www.cnn.com/2012/06/15/politics/immigration/

[38]       http://www.nytimes.com/2016/06/24/us/supreme-court-immigration-obama-dapa.html?_r=0

[39]             http://www.pbs.org/newshour/updates/country-lost-kids/

[40]    http://www.cnn.com/2014/07/15/politics/immigration-not-in-my-backyard/

[41]    http://www.nytimes.com/2015/02/08/magazine/the-shame-of-americas-family-detention-camps.html?_r=0

[42]    http://www.vox.com/2015/12/28/10673452/deportation-central-american-immigrant-families

[43]             http://www.huffingtonpost.com/entry/us-deportation-rates-hit-a-ten-year-low_us_56141ac4e4b0baa355ad93e7

[44] https://www.washingtonpost.com/news/fact-checker/wp/2014/11/18/obamas-flip-flop-on-using-executive-action-on-illegal-immigration/

[45]  http://www.realclearpolitics.com/video/2013/12/04/turley_obamas_become_the_very_danger_the_constitution_was_designed_to_avoid.html

[46]     http://abcnews.go.com/Politics/hillary-clinton-reveals-plans-immigration-reform/story?id=30812123

[47]             The preamble to the Constitution – see http://constitutionus.com/

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