The Constitution: For Obama, Just Another Bump in the Road

Barack Obama's intrusions on the constitutional powers of Congress, his failure to fulfill his own constitutional duties, and his willingness to sign legislation which includes provisions which violate the Fifth Amendment to the Constitution render him unfit to serve as president.  If we re-elect him, we will be well on our way to realizing Benjamin Franklin's fear that we will not be able to keep our republic.

Article II of the Constitution requires the president to take care that the laws be faithfully executed.   President Obama has failed to fulfill this duty.

On July 12, 2012, the administration issued an information memorandum which allows states to apply for waivers from the requirement that welfare recipients work or prepare for work.  Probably the greatest achievement of the Clinton presidency and the Republican Congress elected in 1994 was welfare reform, which replaced the Aid to Families with Dependent Children program with the Temporary Assistance for Needy Families program.  An important goal of the drafters of that legislation was to create a support system that was temporary and not an invitation to intergenerational dependency.  They therefore required that most welfare recipients work or prepare for work as a condition to receiving benefits.  The information statement invites states to apply for waivers of this non-waiveable provision and is therefore unlawful and unconstitutional.

Additionally, on September 5, the Government Accountability Office determined  that the information statement should have been submitted to Congress under the Congressional Review Act.  The administration claimed that the information statement itself complied with the Review Act.  The nonpartisan GAO disagreed. 

On June 15, 2012, having failed to convince Congress to pass the DREAM Act, the president enacted several of its provisions by executive order.  He determined that not only would the administration refrain from deporting  many illegal immigrants under the age of 31, but it would also allow them to apply for work permits, granting them legal authority to remain the in United States for two years.  Simply put, there is no statutory or constitutional basis for such a policy.   

The Worker Adjustment and Retraining Notification Act (WARN Act) requires certain companies to provide at least 60 days' notice of  mass layoffs and plant closings.  Defense contractors are contemplating issuing WARN Act notices on November 2 (four days before the election) in anticipation of the sequestration that may occur on January 2.  The administration has asked those employers not to do so and has promised to pay any fines levied on them as a consequence of that violation of  law.  There is no statutory or constitutional basis for this policy, which actually goes beyond a failure to take care that the laws be faithfully executed.  By offering to pay any resulting fines, the president is aiding and abetting violations of the WARN Act. 

Then there is Article II of the Constitution, which provides that the president may fill all vacancies that occur when the Senate is in recess. 

This exception to the power of the Senate to advise and consent on presidential appointments is archaic.  It was intended to provide for the orderly functioning of the executive branch during a time when the Senate would  be in recess frequently and when journeys to and from Washington required weeks of arduous travel.  The power of the president to make recess appointments is clearly no longer necessary. 

In recognition of this fact, the Senate holds pro forma sessions even when most senators are away from Washington.  Such was the case on January 4, when President Obama made three appointments to the National Labor Relations Board.  In effect the president said to the Senate that he, not that body, determines when the Senate is in recess.

This position violates the right of the Senate to determine its own rules of governance under Article I of the Constitution, and the validity of the president's appointments is the subject of a lawsuit in federal court.  Until that lawsuit is resolved, harm will continue to flow from this abuse of the  recess appointment power, in that every subsequent decision of the NLRB will be subject to a challenge that the NLRB did not  have a quorum necessary for it to act. 

The Fifth Amendment to the Constitution provides that no person shall be deprived of life, liberty, or property without due process of law.

On December 31, 2011, President Obama signed the National Defense Authorization Act of Fiscal 2012 (NDAA).  Section 1021 of that statute provides that the president may authorize the military to detain indefinitely any:

... person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

What is "substantial" support?  What are "associated forces"?  What is support of hostilities "in aid of such enemy forces"?  Additionally, these ambiguous provisions are not limited to non-citizens engaged in actual hostilities in foreign countries.  They are applicable to citizens of the United States acting within our borders.  Conceivably, a journalist who writes an article in New York which advocates an immediate withdrawal of our forces from Afghanistan could be detained indefinitely by the military. 

When did it become acceptable or constitutional for the president to use the military to detain a citizen of the United States within our borders indefinitely for any reason?  How can such an action possibly comply with the Fifth Amendment's due process requirement?  Have we become so fearful that we are willing to walk away from centuries of Anglo-Saxon jurisprudence that gave us such bulwarks of individual liberty as a right to a speedy trial before a jury of our peers?

Thankfully, we still have an independent judiciary.  On September 12, the United States District Court for the Southern District of New York made permanent a preliminary injunction it had issued prohibiting the enforcement of Section 1021.  The Second Circuit has stayed this injunction pending an appellate hearing later this year.

The NDAA enjoyed support from both parties in Congress.  However, it bears Barack Obama's signature.  He is responsible for it, and he should be held accountable for it.

The United States is a constitutional republic, a form of government which has served us well for more than 200 years.  Our ability to preserve that government -- in fact, our ability to remain a representative democracy -- depends on our willingness to hold our leaders accountable when they violate the law or act in ways that are unconstitutional.  President Obama has demonstrated a willingness to aid and abet violations of the law, to abandon his constitutional duty to take care that the laws be faithfully executed, to intrude on the constitutional powers of the Senate, and to violate our right to due process.  To protect our liberties and those of generations to come, we should deny him a second term of office.   

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