Obama vs Romney: The President Has Undermined the Constitution, and We Must Hold Him Accountable

No president in recent memory has shown more disrespect to the notions of rule of law and constitutionalism than has Barack Obama. If we re-elect him, we would be acquiescing to another four years of a president who recognizes few constitutional boundaries to his rule.

This election may be a defining moment, then, for how we understand our Constitution, and if we want to start taking it seriously the answer is not to throw away our votes to a libertarian candidate as some on this site have suggested. The answer is to hold our president accountable for his actions and cast our votes for the man most likely to defeat him in November.

Madison famously defined tyranny in Federalist 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

Devotees of Leo Strauss are also fond of pointing out that in the Declaration of Independence, nature’s God appears in three forms: As Legislator (we are endowed by our Creator with certain rights), Judge (Supreme Judge of the World), and Executive (we rely on Divine Providence to support this declaration).

In other words, a separation of powers is essential to a republican form of government, a unity of these powers is the very definition of tyranny, and only God can be trusted to exercise all these powers both jointly and justly.

We can observe a systematic undermining of this understanding of separation of powers and the rule of law in the last four years of the Obama administration. Time and again, Congress has stood athwart our chief executive — as originally contemplated by the Framers — and he has decided to do it his way anyway. He has used disreputable tactics to legislate from his office, and frequently contrary to the express wishes of the actual federal legislature and to constitutional decisions by our courts of law.

He has, in other words, combined the legislative and executive, and sometimes judicial, powers in himself, starting us down the road of what Madison rightly understood to be tyranny. Let the facts be submitted to a candid world (I write, now, in the mode of the Declaration of Independence):

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He has refused his Assent to Laws, which, in the View of the Congress, are wholesome and necessary for the public Good:

He has unilaterally, and legislatively, amended the Nation’s Immigration Laws, no longer enforcing them against a whole Class of Immigrants to which those Laws still apply, in a blatant Effort to curry Favor with a certain Demographic ahead of the national Elections. The Immigration Laws are certainly in need of Reform, but that has never given an Executive the Power or Justification for undermining the Wishes of the Legislature, or to wield Powers heretofore unknown for the sake of pandering for Votes. And this despite the President’s Protestations in a Discussion on the DREAM Act: “I just have to continue to say this Notion that somehow I can just change the Laws unilaterally is just not true.”

He has unilaterally, and legislatively, stricken work Provisions in the Welfare Laws by promising to issue Waivers to States that eliminate the Requirement that 30-40 percent of TANF Recipients work 20-30 Hours per Week, effectively requiring only the natural turnover Rate to satisfy the federal Legislation. States now need only adopt “a comprehensive universal engagement System in lieu of certain participation rate Requirements,” which means no more than “that everybody is doing Something constructive with their Time ‘for at least one Hour per Week,’ even if that’s as simple as ‘researching child care Options’ or ‘a job readiness Workshop.’” Lest the World think he have such Power, no Waiver has ever been issued during the 15 Years these work Requirements have existed. And lest the World think that the Congress approves of these Changes, it has made its contrary Sentiments known.

He has unilaterally, and legislatively, issued Waivers to States of his Choosing so they need no longer comply with congressionally enacted Education Laws. He has openly admitted that his Doing so was a Result of congressional Inability to amend the Law. “After waiting far too long for Congress to reform No Child Left Behind,” he has said, “my Administration is giving States the Opportunity to set higher, more honest Standards in exchange for more Flexibility.” These Intentions may be good, but they do not appear lawful.

He has unilaterally, and legislatively, issued thousands of Waivers, mostly to his Administration’s Allies, so that they need not comply with a Health Care Law which he himself insisted on imposing upon this Nation. There are, however, no Provisions in the Health Care Law granting the President the Authority to issue such Waivers. Has he not truly become Judge, Jury, and Executioner of this Law?

He has unilaterally, and legislatively, through his Federal Communications Commission, issued “net neutrality” Regulations of the Internet which an honorable Court of Appeals of these United States had already declared he has no Authority to do under existing Statutes. Before the Court, the Commission acknowledged “that it has no express statutory Authority over such Practices,” and so relied on vague Language authorizing the Commission to “perform any and all Acts, make such Rules and Regulations, and issue such Orders, not inconsistent with this Chapter, as may be necessary in the execution of its Functions.”

The Court did not reach the Question of Absence of Rulemaking, holding that whether or not proper Procedures were followed, the Commission had no statutory Authority to regulate the Internet in this Manner. The Administration went ahead and issued such Regulations anyway under the Rulemaking Process the Court had deemed irrelevant. Lest the World think that Congress approves, it has its contrary Sentiments shown.

He has unilaterally, and legislatively, coerced 45 States to adopt a common national K-12 Curriculum, even though the Constitution does not grant the federal Government Control over state Curricula, and three congressional Statutes — the General Education Provisions Act, the Elementary and Secondary Education Act, and the Department of Education Organization Act — specifically prohibit the federal Government from “exercis[ing] any direction, supervision, or control over the curriculum” of the several States. Yet, he has chosen to promise the States Monies which he had from their own Coffers plundered, on the Condition that they adopt a common, nationwide Curriculum contrary to the Wishes of the Congress. Whither the common law Maxim, What cannot be done directly, cannot be done indirectly?

He has, finally, unilaterally undermined the constitutional Injunction that “he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States,” by making recess Appointments over the Course of a long Weekend, even though he had been engaged in actual Business with the Congress in the Days immediately preceding this Weekend.

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One gets the point: We have had a president for the last four years who puts his own policy views above those of the Constitution and the Congress, and who is willing to flout constitutional structure and procedure to get his way no matter what. We, as the representatives of the millennial generation, perhaps need not mutually pledge to each other our lives, fortunes, or honor; but we ought at least to pledge to each other our votes for the other guy.

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Ilan Wurman

Ilan Wurman is a graduate of Stanford Law School. He will be a law clerk for the Honorable Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit during the 2013-14 court term. Ilan graduated from Claremont McKenna College in 2009 with a degree in government and physics. His writing has appeared in Commentary, The Weekly Standard, and Public Discourse.

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