Ruminations January 19, 2014
Obama takes the United States in a new direction
-- From the founding of the United States, certain principles have been maintained regardless of the party or individual in power. Now the president and his party are moving in a new direction – one which seems antithetical to previous principles.
A nation of laws. From its beginning, the United States has been a nation of laws and ruled by the laws not by individuals. Our heritage, going back to the signing of the Magna Carta in 1215, established that the ruler (King John, in 1215) was subject to laws himself – in spite of being king – and had to conform to the laws of the land. The people set forth the laws for the king (which over the years evolved to our constitution and the presidency) which restricted the king’s rights.
It is essential, the Constitution Framers felt, to subject the chief executive and the Congress to an overarching compendium of laws. It is the primary function of the chief executive not to make laws but to enforce them. And when the chief executive takes it on his own initiative to change laws or to not enforce laws, he is violating the Constitution.
Signing statements. Kings and presidents like to use power to lead – even powers expressly denied them. King John, shortly after being forced to sign the Magna Carta began a campaign to subvert it and might have been successful had not his untimely death intervened and his more malleable teenage son inherited the crown.
There is a tendency that those who have achieved the pinnacle of power will use that power and even try to extend it. To that end, presidents since James Monroe have used the presidential signing statement. The presidential signing statement is text that the president adds to an act of Congress that accompanies the presidential signature. Sometimes the signing statement is political ballyhoo but other times it is used by the president to give himself the power to ignore certain sections of laws they consider unconstitutional (or may not like). The signing statement was a rare vehicle until the Ronald Reagan presidency and since then has become popular in his and in subsequent administrations.
Obama, since taking office, has used the signing statement with less frequency to date than President George W. Bush. Still, Obama has used it some 20+ times in spite of the fact that he stated during his campaign that he would avoid its use (that may be ascribed to the growing maturity of an individual from when he runs for office and when he achieves it).
Nonetheless, the American Bar Association (ABA) has criticized the use of presidential signing statements. The ABA “opposes, as contrary to the rule of law and our constitutional system of separation of powers, the misuse of presidential signing statements by claiming the authority . . . to disregard or decline to enforce all or part of a law the president has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress."
While we cannot go back in time and fix previous presidencies, we can pressure the current President to stop its usage and, as the ABA has urged, petition our congressional representatives to pass legislation give greater judicial jurisdiction to courts to review signing statements in which a President asserts that some parts of a bill may be ignored.
Obamacare. In 2010, The Patient Protection and Affordable Health Care Act (aka, Obamacare) became law. It was approved by congress and signed by the president. Among other provisions, the act states that companies must offer their employees minimum coverages.
These coverages have proved onerous for over 1,200 companies and President Obama, by a stroke of his pen, has exempted these companies from participation for the year 2014.
Can he do that? Legally -- no. The Act does not give the president the power to say who must participate and who can be granted a waiver. Then how did he do it? He just did and the only way one can legally challenge his action through the courts is to have “standing.” And by definition, the only people who have standing are those directly and adversely affected by the President’s action. So, Obama gets to extend his power at the expense of Congress (which by rights should modify the law to grant the power that he has exercised).
Last November, Obama stated that individuals could continue to purchase insurance that was in violation of Obamacare. Can he legally do that? Can Obama by fiat change laws? No, but he did.
There is one other way in which the president can be called to task for this usurpation of power—impeachment. And impeachment is not going to happen.
Nuclear Waste Policy Act (NWPA). In 1982, the NWPA was passed by congress and signed into law by President Reagan. Because radioactive waste from nuclear power plants was distributed widely and was not as secure as people would like, an act was passed to study the situation and to select one or more sits for the dissemination of that material. In December 1987, Congress amended the Act to recommend Yucca Mountain, Nevada as the only site for the storage of nuclear waste. After more extensive study, Congress approved and President Bush signed into law in 2002 that Yucca Mountain be the only site.
NWPA is the law of the land and neither the President nor the Secretary of the Department of Energy has veto power over this law. The chief executive’s function is to execute that law. Obama has refused to do so. Is this another usurpation of power?
Recess appointments. In 2012, Senate Majority Leader Harry Reid (D, NV), for political purposes, convened the U.S. Senate, thus establishing the Senate as “in session.”
Obama, who has the power to appoint individuals to specific positions without Senate approval if the Senate is not in session, made a decision. He decided that, although the Senate declared that it was in session, it was not. And, if the Senate was not in session, the president could make recess appointments to the National Labor Relations Board (NLRB) which he did.
The NLRB tried to conduct business until it was challenged in court. The appeals court held that Obama could not independently decide when the Senate was in session and hence his appointments to the NLRB were invalid. Furthermore, since without Obama’s appointments the NLRB did not have a quorum, all decisions that had been made since 2012 were null.
It appears that the Supreme Court will affirm the appeals court and Obama will be thwarted for trying to expand his powers again.
I have a pen. If you believe that Obama’s usurping additional powers were rare and exceptional, consider his statement last week: “We are not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help that they need. I’ve got a pen, and I’ve got a phone. And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward in helping to make sure our kids are getting the best education possible, making sure that our businesses are getting the kind of support and help they need to grow and advance, to make sure that people are getting the skills that they need to get those jobs that our businesses are creating.”
Give Obama the benefit of the doubt; assume that his executive orders, executive actions and administrative actions are good actions and would serve the nation well. Are they the actions of a presidency limited under the U.S. Constitution? Or do they seem more like the actions of a benevolent dictator?
These actions are not merely political. They go to the foundations of our constitution.
Quote without comment
Senator Ted Cruz (R, TX) writing on his website, December 9, 2013, The Legal Limit: The Obama Administration's Attempts to Expand Federal Power -- Report No. 2: Obamacare: “By disregarding the statutory text passed by Congress, the Obama Administration is ignoring the will of the people and governing by unilateral executive fiat. This violates the separation of powers, because the Obama Administration has declared it is willing to exercise the legislative power constitutionally reserved to Congress.”