Where Does the Presidency Go From Here?

June 24, 2014



By Nancy Thorner and Ed Ingold – 

The PBS Newshour on June 18 at 6:45 p.m. EST, presented a topic for debate that should be non-partisan in nature: “How much power can the president wield by sidestepping Congress?  Gwen Ifil presented the following introductory remark:  “This week, the White House has announced three separate executive actions dealing with gay rights, the environment, and manufacturing, raising the question, in the midst of partisan gridlock, how much can the president do without Congress?”

It was Jeffrey Brown of PBS who conducted the June 18th PBS program debate between Jonathan Turley, Shapiro Professor of Public Interest Law at George Washington University, and Michael Waldman, President of the Brennan Center for Justice at NYU School of Law.  Brown prefaced the start of the Turley/Waldman debate by informing listeners how President Obama has been expanding executive action, something Obama promised to do earlier this year when he said:  “We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need.  I have got a pen and I have got a phone.”

Brown continued his preliminary debate remarks by relating how President Obama has followed through on a wide range of issues, including equal pay for women, student loans, and more recently carbon pollution, with the result that every time the president does he faces backlash from those who peg him as an imperial president.

The debate that followed was a surprisingly, well-balanced debate on a traditionally liberal forum.  Jonathon Turley provided some good insight. This is the same Jonathan Tuley who testified as a constitutional law expert in front of a House Judiciary Congressional hearing, “Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws,” on Wednesday, February 26, which focused on the multiple areas President Barack Obama has bypassed Congress, ranging from healthcare and immigration to marriage and welfare rules.

In his Congressional testimony, Turley warned that expansion of executive power is happening so fast that America is at a “constitutional tipping point.”  This from one who agrees with many of Obama’s policy positions, while he steadfastly opposes the method Obama is going about in enforcing them

The President has increasingly resorted to using Executive Orders to further his objectives. The excuse being is that he is unable to get Congress to do his bidding. The House, in particular, controlled by Republicans, is unlikely to cooperate in this regard. With conservatives moving further to the right, the country is becoming more polarized, a natural consequence of nature seeking a balance. With a President moving ever further to the left, refusing to compromise with Congress or even to obey and enforce laws already on the books, moving to the right is the only way to offset this misdirection. Conservatives have found that to compromise is to lose. The Left has abandoned the gentle art of compromise, which forms the core of a working democracy. The barricades are up and the lines are drawn.

Although all Presidents have used executive powers to some extent, none have used these powers like President Obama to directly override Congressional wishes, existing laws, and to create new powers for himself.  President George Washington numbered but eight executive orders.  In the grips of a devastating union strike President Truman took control of the steel industry on April 8, 1952 to prevent collapse of manufacturing, transportation, and ultimately the economy; President Obama did the same to halt a transportation strike in Philadelphia which paralyzed the city. Truman’s action was subsequently found unconstitutional and overruled by the Supreme Court in a 6 to 3 decision.  Why did a similar action by President Obama go unchecked?

The National Emergencies Act of 1976 sought to define presidential power in a way which would serve the country and the constitution, yet be reasonably constrained.

Conflict with Congress is nothing new. Laws can be proposed by the President, but must be passed by both the Senate and House in the same ultimate language. The process is cumbersome because it is intended to force compromise, between branches of government and chambers of the legislature. It is this give and take structure, which has served for nearly 250 years, that is under unparalleled assault by this administration.

It is not just the President, but his major appointees who threaten the rule of law. The Attorney General, Eric Holder, has refused to enforce major provisions of immigration law against selected classes of people. Knowing they will not be deported, we have up to 600 unaccompanied children each day pouring across the border, only to be shipped by buses and planes throughout the country with only a token admonition to submit to a hearing.

Pamphlets encouraging this migration are being handed out in their native countries, a thousand miles away, by unidentified persons. The Defense of Marriage Act (1976) was overturned by the Supreme Court, largely because Holder refused to defend it, giving a precedent by which state and local laws continue to fall (The Supreme Court ruled that the act usurped power granted to the states.). Bill Clinton signed the bill, and Congress overwhelmingly supported it.

In the last day or so both Vice President Biden and President Obama have conveyed messages to the governments of Guatemala, El Salvador, and Honduras that the children being sent will not be granted amnesty, but, like other promises, they are likely to say one thing and do another.

According to pro bono lawyers hired to represent the unaccompanied children, based on current immigration and asylum laws the vast majority of the children could be legally staying right here in the U.S. before long. Their opinion is further bolstered with recent information that on January 29th of this year, the federal government posted an advertisement seeking bids for a vendor contract to handle “Unaccompanied Alien Children” — 65,000 of them!  The Obama administration’s claim to have been surprised may very well be yet another political lie of the year.

The Department of the Treasury joins the Department of Justice and the President in the assault on the Constitution. The Constitution grants first power of the purse to the House of Representatives, yet Jack Lew declared he would order the Treasury to print money for the President to spend, whether authorized by Congress or not. The theory is that once Congress determines something should be done, it will be done at the discretion of the President, regardless of the cost and the manner of implementation. Congress can no longer halt action by withholding funding.

The Internal Revenue Service, allegedly at the behest of key Democrats, including Charles Schumer and Richard Durbin, launched a campaign to silence conservative citizen organizations before the 2012 elections, hoping to prevent a repeat of their apparent success in 2010. The President’s role is unclear, but in his State of the Union address in 2011, Obama called out the Supreme Court for its 2010 “Citizens United” decision, which gave corporations and associations the right to spend money on political campaigns and issues. This was recently expanded in “McCutcheon” decision, April 2014.

If nothing else, the President’s statements may have emboldened his followers to act on his behalf, like the famous statement made by King Henry II:   “Will no one rid me of this troublesome priest? [Thomas Becket].”  Despite considerable indication of a major cover up, even destruction of evidence, the Attorney General refuses to appoint an Independent Investigator (prosecutor), with real authority to uncover the facts.

The Democrats are acting as though there will never be another president, that the next two years are the only ones that count.  We can’t survive as a nation if this lawlessness continues.  In the absence of constraints, whether by law or ethics, the Republic is in grave danger of becoming a dictatorship.  The next president will not reset the clock, rather start in the footsteps of the last, and so ad infinitum.

This President is unchecked largely because any legislative restraints passed by the house are blocked from the Senate floor by majority leader Harry Reid, as well as any that might originate in the Senate. If Reid and the Democrats cannot see that their actions render Congress irrelevant, the only hope is that Republicans will be restored to control that body in the 2014 mid-term elections.

Even gains short of a majority might still awaken Senate Democrats to the folly of the status quo, and revive the tradition of negotiations and compromise. The President could still veto legislation, but the sole responsibility would fall on his shoulders. So shunned, Congress has a long tradition of bi-partisan restoration of balance in the form of override votes.



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