‘Stroke of the pen, law of the land, kinda cool’

President Barack Obama’s supporters have cheered the boldness with which he’s cut through the Gordian knot of congressional “gridlock,” instituting changes in the law that meet with their approval through executive fiat.

But to fully grasp the danger of a president thus bypassing our constitutional system of checks and balances — a system in which only Congress is supposed to make the law, which the executive branch swears to enforce as written — those who are happy with the current results need only ask themselves how pleased they would be if some future executive were to similarly bypass Congress, using a mere stroke of the pen to outlaw homosexual conduct, say, or to close down the Environmental Protection Agency, or to order unrestricted eavesdropping on our computers and telephones.

This is not to say Mr. Obama initiated the trend. Most historians struggle to find a Constitutional justification for Mr. Jefferson purchasing Louisiana from the French without congressional approval — even as they concede he got a heck of a deal.

And only Congress is supposed to have the power to declare war. Which means that, since the last time the legislators did so was in December of 1941, all our overseas military adventures since 1945 have been legally dubious, at best.

Still, for a law school graduate who has repeatedly cited the separation of powers in the past, Mr. Obama’s politically opportunistic violations of the separation of powers in recent weeks have been breathtaking.

Both voters and members of Congress can have their separate positions on the so-called “Dream Act,” which aims to provide legal residency status and a path for citizenship for illegal immigrants who were brought here by their parents when they were minors.

But the fact is that Congress has debated that proposal, and in its wisdom, decided not to enact it as law.

So President Obama recently signed an executive order, waiving penalties in the law for such law-breakers, and ordering his subordinates to start registering such persons for the issuance of work permits, which he represents as granting them a legal right to work in this country.

On what legal basis?

Congress has not failed to enact immigration law. They’ve enacted thousands of pages of immigration law. Presidents are not authorized to enforce only those parts they like, while arbitrarily changing others.

(Though if simple non-enforcement IS to be endorsed, how on earth does Mr. Obama, a self-described heavy high-school doper, explain how he has failed to halt enforcement of our hideous federal drug laws, while using his pardon power to empty half our prison cells?)

Nor was it the intention of the Founders that Congress should enact new laws as quickly and easily as a cat fills its litter box. What those frustrated at the pace of change now call “gridlock” the founders called “due deliberation,” wisely realizing that a people will not freely accept changes to their accepted ways and customs that have not been thoroughly weighed, tested and debated.

Nor is it obvious that this dangerous executive overreach is made necessary because Mr. Obama’s political opponents “refuse to compromise.” What compromise was offered in exchange for Republican votes for the “Dream Act”? A reduction in total federal spending, next year, by 15 percent? An agreement to more aggressively locate, round up and deport illegal aliens who came here as adults? To no longer attempt to cripple the economy by regulating emissions of carbon dioxide, a harmless gas necessary to life on earth?

Isn’t a compromise when Democrats agree to some common-sense measure THEY don’t like?

President Obama also doesn’t like portions of the “No Child Left Behind” federal school funding law. In that case, he has two allowable options: He can ask Congress to revise the law, by majority vote, or he could conceivably order his attorney general to bring suit at the U.S. Supreme Court, seeking to have the entire law thrown out for lack of Constitutional authorization, under the 10th Amendment.

But he has done neither of those things. Instead, his administration has unilaterally granted waivers to the states of whatever portions of this law they don’t like.

President Obama has likewise unilaterally granted waivers to the states of the legal requirement that welfare recipients must work, by simply redefining “work” to include such alternative activities as going to classes on weight control.

To justify thus eviscerating the welfare reforms signed into law by his Democratic predecessor, Bill Clinton, Mr. Obama claims he can issue waivers of the work requirement under Section 1115 of the Social Security Act.

But the TANF law states that waivers cannot be issued unless they are specifically listed in Section 1115. Welfare’s “work” requirement is not listed.

Robert Rector of the Heritage Foundation, who helped write the 1996 welfare reform, says the “mandatory work requirements” contained in Section 407 were deliberately not listed in Section 1115 so they could not legally be waived. Why? He reminds us that before 1996, Democratic governors had evaded work requirements by allowing such activities as hula dancing, attending Weight Watchers and bed rest to qualify as “work.”

“If laws passed by the elected representatives of the people can be simply over-ruled unilaterally by whoever is in the White House, then we are no longer a free people, choosing what laws we want to live under,” warns Thomas Sowell, the Rose and Milton Friedman Senior Fellow on Public Policy at Stanford University’s Hoover Institution. “When a President can ignore the plain language of duly passed laws, and substitute his own executive orders, then we no longer have ‘a government of laws, and not of men’ but a President ruling by decree, like the dictator in some banana republic.”

And who knows, once such a precedent is set, what the next dictator – or even the current one – may next decide to undertake?

One Comment to “‘Stroke of the pen, law of the land, kinda cool’”

  1. Paul Says:

    As can be seen in a letter he wrote (to Wilson C. Nicholas, September 7, 1803), Jefferson was not at all comfortable with the constitutionality of the Louisiana Purchase. He comments that it would be best to get an amendment to have the power clearly granted. He closes with this statement “If, however, our friends shall think differently, certainly I shall acquiesce with satisfaction; confiding, that the good sense of our country will correct the evil of construction when it shall produce ill effects.” In other words, he didn’t think the Constitution allowed what was being done, but if others were willing to go along with it, he wouldn’t stand in the way. And in that case, he would hope that the shortcut being taken wouldn’t produce lasting damage.

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