Cohaagen: Richter, you know why I’m such a happy person?
Richter: No, sir.
Cohaagen: Because I have one of the greatest jobs in the solar system. As long as the turbinium keeps flowing, I can do anything I want. Anything. In fact, the only thing I worry about is, one day, if the rebels win, it all might end.
—Ronny Cox as Vilos Cohaagen and Michael Ironside as Richter in Total Recall
Am I the only one alarmed by these things?
Foxnews.com reports that this week the President will begin announcing a series of measures to try to jump start the economy, beginning with the Affordable Loan Refinance Program. Apparently, not enough people with bad credit or other high risk factors are able to refinance mortgages that are under water; that is, people who are at high risk of default can’t get loans on houses that aren’t worth as much as what’s owed on them. So to boost sagging demand in the housing market, Obama is by executive fiat going to order banks to make low-interest (read: low return relative to risk) loans to people who fail the normal underwriting rules designed to mitigate against the risk of foreclosure, and to do so on assets that by definition won’t cover the amount of the loan in the event the borrower defaults.
Wasn’t it Einstein who said the definition of insanity is doing the same thing over and over again and expecting different results?
As I’ve discussed previously, it is exactly this sort of government program that is at the root of our current economic mess. The mortgage crisis and banking industry meltdown stemmed directly from the government effectively forcing banks to make high risk loans with little security. Of course, why should we be at all concerned about repeating this mistake—after all, this time it’s Obama, and we know all about the Obama administration’s sterling track record when it comes to dabbling in high-risk lending.
Apparently, after 1000 days in office, the situation is now so urgent that we absolutely cannot wait any longer for Congress to act, so Obama-the-Savior has to assume the burden of rescuing us himself.
But I want to leave aside the sheer stupidity of repeating the forced lending mistake and focus on the real danger here, which is the process by which this is coming about. This of course isn’t the first time we’ve seen this (as I’ve covered here and here and here), and there have been several examples of this use of executive fiat in recent weeks. Barely 10 days ago, HHS Secretary Kathleen Sebelius informed Congress that because of long well-known problems with its long-term financial viability, the Administration would not be implementing the “CLASS Act,” the long term care program baked into the Obamacare bill, effectively exercising an after-the-fact line-item veto by administrative action.
I guess they really did need to pass it so they’d know what was in it.
Last week, the President—again citing Congress’ failure to act—announced that his Department of Education would waive State compliance with basic elements of the No Child Left Behind law, effectively repealing the statute by executive decree.
Let’s assume for a second that Obama’s right (and, frankly, I don’t disagree that the CLASS Act and the No Child provisions the administration is avoiding were bad ideas—the mortgage thing is a different story, but my point here has nothing to do with the substance or merits of any of these statutes). Let’s assume that he’s omniscient, endlessly benevolent, and really does need to take these measures for our own good. Let’s assume that it’s really that urgent and we can’t wait any longer for Congress to enact legislation. Let’s forget for a moment the colossally incompetent mess this President and his cabinet staff of career academics made the last time they got into the high risk loan/investment business, and assume that this time he’s got it right.
From where does the President derive the authority to do any of this?
Article II, Section 2 of the Constitution lays out the powers of the President:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have the Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Oh, yes, and Section 3 goes on to provide that the President “shall take Care that the Laws be faithfully executed[.]”
There is no “Congress fails to act” provision in the Constitution allowing the President to take unilateral action if Congress gets bogged down. There is no line-item or after-the-fact veto allowing the President to—whether officially or de facto through deliberate inaction—write laws out of existence, even if those laws are stupid, fiscally unsustainable, or otherwise useless piles of steaming dung. That is so, regardless of how urgent the need is.
I’ve harped on this before; the unilateral assumption of Presidential authority to rewrite or simply ignore acts of Congress that have been duly passed and signed into law is by far the single most dangerous threat to what’s left of this Republic. Once the President has the power to do that, Congress becomes meaningless. Presumably that same power to ignore actions of the Legislative branch would also permit the President to ignore actions of the Judicial branch. At that point, we cease to be a nation of laws at all. The President would have absolute power, because he would no longer be bound by anything Congress or the courts do. That’s how it works in places like North Korea and Cuba.
“The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.”
We’re about two steps away from square one.
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