Who needs the Constitution?

Anyone with a high school education should be able to explain what the Constitution of the United States discloses about the separation of powers and how each of the three branches of our government is limited in its authority.

It is, however, becoming increasingly clear that our Constitution’s intended “checks and balances” are in jeopardy and in danger of becoming irrelevant by our president’s expanded use of executive orders.

As we approach the question of presidential power we need to be mindful of warnings by people like Associate Justice Robert Jackson when he warned that, “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb…” In 1834, U.S. Senator Daniel Webster also warned, “Executive power has been regarded as a lion which must be caged.”

Executive power in the form of “executive orders” has been greatly expanded under the Obama administration and there is evidence that strongly suggests this power is about to be extended beyond anything seen to date.  

We have already witnessed President Obama exceeding his constitutional restrictive boundaries in several instances. He could not get Congress to go along with his cap-and-trade initiative, so he made it happen by bureaucratic fiat through the EPA.

Article 1, Section 8 of the Constitution clearly places the responsibility of establishing a uniform Rule of Naturalization in the hands of Congress. However, when President Obama failed to convince Congress to pass the DREAM Act, Obama’s Department of Homeland Security issued orders to reduce deportation of illegal immigrants brought here as children. In testimony before the House Judiciary Committee, an ICE Union representative revealed they are often under orders to not arrest persons suspected of being in the US illegally.

Even though the president could not persuade Congress to pass the “Card-check Law” in favor of big unions, the National Labor Relations Board, stacked with his appointees (perhaps illegally appointed) and supporters, has since been trying to achieve much the same thing by the use of NLRB rule changes.

By simply ignoring enforcement of laws against marijuana use and the Defense of Marriage Act, the administration avoided congressional action.

More recent examples of executive overreach have been the president’s postponements and changes In the Affordable Care Act, all accomplished by executive fiat. Each of these end-around moves by the president threatens the bedrock of our constitutional republic as suggested by Justice Jackson.

President Obama’s recent appointment of John Podesta to his advisory team and his recent remarks to his Cabinet that he has a ”pen and a phone“ reveals that his intended strategy is to become even more aggressive in his use of executive orders to circumvent Congress and accomplish his agenda.

In an interview, the president’s new advisor Podesta said his advice would be for Obama “to focus on executive action given that they are facing a second term against a cult worthy of Jonestown in charge of one of the houses of Congress.”  Both have used very strong language, which unquestionably exposes their plan to continue to work outside the confines of the U.S. Constitution much as any statist might wish to do.

Using Daniel Webster’s vernacular, I ask, do the American people, Congress, or the courts have the will or even the authority to return this lion back to his cage and see to it that he executes only the laws passed by Congress?

The problem seems to be that in order for Congress to bring suit for such an abuse of power, they would need to show that they, Congress, would imminently be harmed by the president’s actions. If they cannot do this, the courts may dismiss any congressional suit challenging the constitutionality of any of the president’s executive orders.

There is already precedent established by a lawsuit brought in 1997 where the Supreme Court ruled that Congress had no standing (not harmed) to challenge the constitutionality of the presidential line-item veto.

If congressional standing were to be denied Congress in this case, impeachment may be the only way remaining to check such usurpation of presidential authority. Even though abuse of power seems to be grounds for impeachment, it is unclear that there would be the political will for a Democratic controlled Senate to rule against the president in this manner.

Still is a resident of Kalispell.