Tuesday, August 05, 2014

What to do about lawlessness: Impeach? Sue? Explain away? Celebrate?

 Commentary by James Shott

The governmental system of the United States of America was carefully designed to prevent the sort of oppression that the colonists had fought and died to escape in the Revolutionary War from arising under the new government. The Framers reacted to an intolerable system where the people were totally at the mercy of the king and the parliament, without a real voice of their own.

Toward that end, the Framers created a tri-partite government with a legislative branch, an executive branch and a judicial branch, each with its specific and limited powers, and each with abilities to limit the power of the other two branches through a system of checks and balances.

In this system, the Congress, and only the Congress, makes law. The executive branch is charged with implementing and enforcing the laws that Congress makes and with operating the government efficiently. The judiciary, through the Supreme Court and other federal courts, has the sole power to interpret the law, determine the constitutionality of laws, and apply the law to individual cases.

This system of government is by design inefficient, with separated powers and checks and balances to prevent a tyrannical majority from running roughshod over the minority.

But even this well-thought-out system isn’t perfect, and the Democrat Party demonstrated that in 2009 and early 2010 when the 111th Congress with Democrat majorities in both the House of Representatives and the Senate passed the Affordable Care Act with no Republican input in the bill’s creation, and no Republicans voting for it, and a Democrat president signed it into law.

It seemed not to bother the Democrats that by their action they had thwarted the integrity of the constitutional system the Framers had so diligently and prudently created, despite their having sworn an oath to uphold it. To the contrary, they celebrated their dubious victory.

Add to that a president who uses his position to take actions the Constitution does not authorize him to take, and in fact specifically precludes him from taking by granting exclusive law-making authority to the Congress. Congress, in fact, or at least some members of Congress, seems content to allow the president to do this, even though by him taking these actions and by Congress allowing it, the executive branch renders the legislative branch a purposeless relic.

Article II, Section 1 of the U.S. Constitution begins: “The executive Power shall be vested in a President of the United States of America.”

And from the horses mouth, so to speak, whitehouse.gov proclaims: “The power of the Executive Branch is vested in the President of the United States, who also acts as head of state and Commander-in-Chief of the armed forces. The President is responsible for implementing and enforcing the laws written by Congress ...”

The president’s job is to implement and enforce laws. He is not authorized to unilaterally decide which laws to enforce, or to change the provisions of laws. Congress makes laws and amends laws.

While the president has latitude and flexibility in operating the government, any action he takes contrary to written law or constitutional intent may be challenged as unconstitutional.

Peter Wehner, senior fellow at the Ethics and Public Policy Center, writing in Commentary magazine online, comments: “Examples include (but are not limited to) unilaterally delaying implementation of the Affordable Care Act’s employer mandate, issuing health-care edicts that undermine the Religious Freedom Restoration Act, making unconstitutional ‘recess appointments’ to the National Labor Relations Board and the Consumer Financial Protection Bureau, refusing to enforce current immigration laws related to illegal immigrants who were brought to America as children, and waving welfare work requirements.”

“I suppose the temptation to act as a potentate is understandable; but it also happens to be illegal. The president, after all, has the constitutional duty to “’take care that the Laws be faithfully executed,’” Mr. Wehner added, referencing Article 2, Section 3.

Since Congressional Democrats seem to subscribe to the “ends justifies the means” school of thought, they are perfectly content with the president’s lawlessness, and the media has done a good job of demonizing Republicans for opposing that lawlessness.

Rep. Marsha Blackburn (R-Tenn.), notes that the House has passed 356 bills that have piled up on Senate Majority Leader Harry Reid’s (D-Nev.) desk awaiting Senate action. She told TheBlaze that 98 percent of those bills were passed with bipartisan support. Two hundred of them were passed with unanimous support from the entire House chamber and more than 100 were passed with 75 percent support of House Democrats. Yet the Democrat controlled Senate ignores them.

And, before the government shutdown, House Republicans passed bills to avoid the shutdown that the Senate never acted on by, and there was no effort at compromise. And still the media, the president, and Democrats in Congress keep telling us that Republicans aren’t doing anything.

If Democrats in Congress won’t stand up to the president’s over-reaching, honor their oath of office and protect Congress’ constitutional authority, and continue to oppose legal action and impeachment, by their inaction they will have abetted the evolution of an imperial presidency, returning to United States the tyranny that existed before the Revolution.

Cross-posted from Observations

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