Wednesday, August 10, 2011

Badges? We Don’t Need No Stinking Badges! — Obama’s Expanding Executive Fiat

“Presenting your Royal Highness, our illustrious King Julien XIII, self-proclaimed lord of the lemurs, et cetera, et cetera, hooray everybody.”
—Cedric the Entertainer, as the voice of Maurice in Madagascar


As I initially posted August 8, the Obama Administration has announced that it will no longer enforce the math proficiency requirements built into the No Child Left Behind Act.  Calling it a “slow-moving train wreck,” Secretary of Education Arne Duncan is waiving the requirement for states that, in his judgment, have adopted their own accountability programs and are making progress towards improvement.  So, in essence, the Administration has, in its infinite wisdom, taken it upon itself to declare that a law duly enacted by Congress that has been on the books for a decade is unworkable and therefore simply won’t be enforced.  There’s been no hearing, no debate, and no vote; only the stroke of an agency pen.  When I raised this with my 13 year old, she scrunched her face and asked, “Do they have the authority to do that?” 


Leave aside the pros and cons of the statute itself; I myself think No Child Left Behind was misguided and flawed from the get-go.  The issue here is that the Obama Administration has enacted what amounts to a line-item veto nearly ten years after the fact.  And this isn’t the first time we’ve seen this kind of behavior from him.  This week’s action is just the latest in a growing string of increasingly bold assumptions of power through executive fiat.  UPDATE 8/18/2011: DHS CANCELS DEPORTATIONS, ENACTING FAILED "DREAM ACT" BY FIAT.  Consider: 

May 2009           Shortly after Obama takes office, Attorney General Eric Holder’s Justice Department refuses to enforce the Voting Rights Act against the New Black Panther Party.   

June 2009           Department of Homeland Security Secretary Janet Napolitano announces her department will no longer enforce the Immigration Marriage Fraud Amendments adopted in 1986. 

March 2010        To secure Bart Stupak’s deciding vote, Obama signs an executive order essentially refusing to enforce parts of Obamacare providing for federally-funded abortions. 

February 2011    The Justice Department announces it will no longer defend the Defense of Marriage Act in court, declaring it unconstitutional. 

March 2011        The Obama Administration continues preparations for the implementation of Obamacare, despite a federal court ruling that the law is unconstitutional. 

June 2011           Obama refuses to comply with the War Powers Resolution with regard to U.S. involvement in Libya (in fairness, he is not the only President to do this). 

August 2011       The Department of Education announces it will no longer enforce portions of the No Child Left Behind Act. 

2009-2011          The Obama Administration continuously refuses to enforce immigration laws, dismisses huge numbers of deportation cases, and actively sues to prevent States like Arizona, South Carolina, and Alabama from filling the void.  

Did I miss something?  From whence does the President derive the authority to choose which laws will and won’t be enforced?  What makes the President the arbiter of what is or is not constitutional? 

Article I, Section 1 of the Constitution places the power to legislate—i.e., the power to make laws—exclusively with the Congress: 

All legislative Powers herein granted shall be vested in a Congress of the United States[.]  (emphasis added) 

All.  Period.  Nothing qualifies this grant of legislative power on later Presidents’ unilateral determination of whether the law enacted is workable or constitutional.  The only condition on the legislative power having anything to do with the President is the power of veto conferred by Article I, Section 7: 

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it[.] 

That veto is subject to override by a 2/3 vote.  A bill that passes both houses and is signed by the President, or neither signed nor vetoed within 10 days, or is vetoed and then re-passed by a 2/3 majority becomes a law.  It is not subject to later Presidential review. 

The fact is it isn’t the President’s job to legislate or to pass on the constitutionality of legislation (on the latter, see Marbury v. Madison).  The President’s job is to execute that legislation.  Article II, Section 1 makes this clear: 

The executive Power shall be vested in a President of the United States[.] 

An “executive” is one who carries out, or enforces.  Black’s Law Dictionary lays it out nicely: 

As distinguished from the Legislative and judicial departments (i.e., branches) of government, the executive department is that which is charged with the detail of carrying the laws into effect and securing their due observance. 

There simply is no constitutional authority for the President to refuse to enforce laws, or for him to decide their constitutionality.  The President can exercise a veto at the time the legislation is passed, but once that time comes and goes, it’s done.  The Bill becomes Law, and the President’s only option is to enforce it.  Subsequent Presidents don’t get to submit the entire United States Code to a do-over veto. 

To flip the question, if Obama can do this, what’s to stop a later President from refusing to enforce the Civil Rights Act of 1964?  Or simply declaring the Americans with Disabilities Act (or—and listen close, Obama-defenders—Obamacare) unconstitutional? 

Don’t bother with the “protecting and defending” nonsense.  First, that’s an oath of office, not an empowering provision (and in any event it is preceded by the affirmation that he will faithfully execute the office of President, not of Congress, and is qualified by the caveat “to the best of my ability,” which carves out those measures of protecting and defending that are outside his constitutional mandate).  Second, if “protect and defend” means a President can deem a law unconstitutional and then refuse to enforce it, the Article I passage + signing = passage + veto + override = Law equation becomes meaningless.  Third, unconstitutionality hasn’t even been offered as a justification for most of Obama’s usurpations of legislative power. 

Harken back to grammar school or even the Schoolhouse Rock TV series if you must.  We have three branches of government: 

The Legislative branch (Congress) legislates;
The Executive branch (President) executes or enforces; and
The Judicial branch (Supreme Court) decides on constitutionality.

This Chief Executive is assuming for himself the legislative authority to re-write laws or eliminate them altogether, and the judicial authority to declare which laws are constitutional and which aren’t.

These are not the actions of a President under the constitutional republic system of government laid out in our Constitution.  They are the actions of a dictator. 

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