Obama as Imperial President

Ever since President Obama was elected in 2008, his administration has taken on the appearance of an “imperial presidency” while Congress has acted as a tableau of figureheads. Americans need look no further than Obama’s executive actions concerning the delay in the ObamaCare mandates, the recess appointments, and his changes in the immigration laws.  President Obama had no qualms in his recent State of the Union address in declaring that he will use the power of the pen and will sidestep Congress whenever and wherever possible. American Thinker interviewed Constitutional scholars, Senator Mike Lee (R-UT) and law professor Elizabeth Price Foley about this Constitutional crisis.

Both feel that what President Obama has been doing regarding his executive actions is unprecedented, not so much for the quantity of executive orders issued but the quality.  He is using his power to change laws and amend legislation, which is completely unconstitutional.  Senator Lee noted that it is important to make a distinction on the type of executive orders, since many are benign and do not violate any principle of Constitutional law.  Professor Foley agrees, pointing out that this president is willing to act “directly contrary to what the law says.  You can have 10,000 executive orders and every one of them can be perfectly constitutional or conversely you can have two that are totally unconstitutional.  Which presidential action is worse? Of course, the latter.”

The president’s blatant action can be viewed in the context of ObamaCare, his recess appointments, and his “Dream Act” implementation.  Those interviewed cite Obama’s unilaterally altering the Affordable Care Act over twenty times, for blatant and obvious political reasons.  Just recently he delayed the employer mandate on ObamaCare as long as an employer does not lay off or reduce the hours of workers in order to avoid the burdensome regulation. The Obama administration says it will require employers to certify, under penalty of perjury, that they have not taken an action that they have every legal right to take, a breathtaking abuse of power.

Foley says there are a number of abuses, “In the announcement to delay the mandate this administration specifically thanked the efforts of various Democrats who are facing very difficult elections.  Obama also defied the language of the law because the act states, ‘The amendments made by this section shall apply to months beginning after December 31, 2013.’ In other words, the provisions of Obamacare become fully effective in 2014, as a matter of duly enacted federal law. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.  These rules, including the requirement that an employer must sign under the penalty of perjury that they have not reduced their workforce to avoid obligations of the law are rules that ‘King Obama’ has set down.  He is preventing employers from engaging in perfectly lawful behavior, the hiring and firing of employees.  Look at this scenario: an employee who just lost their job complains to the Department of Justice. The DOJ can then intimidate a business and even file criminal contempt charges. This intimidation and cost factor to defend oneself is huge.”

In another instance, the directive issued last year by the president unilaterally implements the Dream Act, which was never passed by Congress. It basically grants a reprieve from deportation and work-authorization papers for those brought here illegally to the United States before they turned 16 years old, are no older than 30, have been in the U.S. for at least five years, have been convicted of no serious crime, and have a high-school diploma, a GED, or a stint in the U.S. military.  Foley considers this an illegal act and another abuse of power for “its boldness, aggressiveness, and the unashamed use of executive power that contradicts existing law.”

Senator Lee considers the president’s supposed recess appointments in January 2012 as an outrageous abuse of the separation of powers when Obama bypassed the Senate to install three members of the National Labor Relations Board and a director, Richard Cordray, for the controversial new Consumer Financial Protection Bureau. The president must not understand what a pro forma session of the Senate is since he broke with precedence and unilaterally decided he would be the one to determine if the Senate was in session.  Professor Foley agrees with the second appeals court that joined the D.C. Circuit in ruling that President Barack Obama’s recess appointments are unconstitutional. “Both courts determined that the Senate, not the president, decides when they are in session.  Since it is now before the Supreme Court, I feel very comfortable in saying that the Supreme Court will agree with this ruling.”

The president is able to power grab because there is no longer any checks and balances from the legislative branch or the mass media.  The founders must be turning over in their graves since they had counted on the fact that the Senators would not want to relinquish their role to protect and preserve their Constitutional rights.  Senator Lee cannot understand how the Democrats, during the State of Union Address, gave the President a standing ovation when he said he would bypass Congress to implement his policies. “If a Republican president said and did what President Obama has done I would be up in arms.  I think most, if not all, Republicans in the Senate would call that president on it.  I am stunned that not a single Democrat has come out publicly in opposition to what is happening.  Although, I must say some have told me privately they think I am correct in calling this president out for the sake of the Constitution.”

Professor Foley blames the mass media and the some of the millennials who think the Constitution is just an old, archaic, outdated piece of paper. She regards the press as “being very complicit as they do the president’s bidding instead of being requestors of the truth.  I am sure if this were a Republican president they would be playing that role very effectively. Those in agreement don’t care if there is a legal process and consider that what matters is the end result.  This means we really don’t have a rule of law anymore.”

What can be done do stop this obvious abuse?  Professor Foley wants to see a lawsuit, which she sees as a productive means to once and for all settle what a president can or cannot do. The House seems to agree, since just last week they voted for a bill that would expedite congressional lawsuits against the Chief Executive for failing to enforce Federal laws, including the Affordable Care Act and unilaterally implementing the Dream Act.

Senator Lee agrees with these actions, but warns that there will be some cases which might not have Article III standing.  “You cannot always count on the courts to remedy all Constitutional violations.  This means that Congress must use some tools as its disposal, the power of the purse.  We should do what James Madison wrote about in Federalist 57, to withhold funding for programs where the president has overreached. Although this is the best remedy at this time, Congress is not using it. If both Houses of Congress will be under Republican control after the 2014 election, it will be easier to make the case of withholding funding.”

Every American should want to protect and defend the Constitution to ensure that the president faithfully executes the law.  The Senate and the House have an obligation, as Federal officers, to defend the Constitution. Instead, they are allowing themselves to be held hostage by this president as he implements policies without any authority. Senator Lee summarized it best, “If the president continues to do this and is allowed to get away with it I fear it will take root within our Constitutional structure.  It will be assumed that this is just one of the actions presidents do.  We will become closer and closer to the kind of government that is not accountable to the people anymore. Which in the end will mean that public policy will be crafted, molded, and created in such a way that it will be insulated from the political process.”

The author writes for American Thinker.  She has done book reviews, author interviews, and has written a number of national security, political, and foreign policy articles.