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REWIND: ‘Maybe it was a Bad Idea to Concentrate So Much Power in the Oval Office in the First Place’

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If the next president can turn out to be a tyrant, then ‘tyrant-proofing the presidency’ is our most pressing political task.

Gene Healy writes: The prospect of Donald Trump as president is only slightly less ridiculous than the idea of Charlie Sheen with nukes—and possibly more frightening. And yet, it looks as though the verbally incontinent celebreality billionaire has a one in three chance of being elected come Tuesday.

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Terrifying, yes, but fear can be useful. In this case, it ought to concentrate the mind wonderfully: if someone so manifestly unfit, so transparently likely to abuse power, can come within striking distance of the presidency, then maybe it was a bad idea to concentrate so much power in the Oval Office in the first place.

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“A broad majority of Americans—far more than will end up voting for Trump—distrust Hillary Clinton, the second most reviled candidate in the history of polling. Are they wrong to worry about her having the power to ‘unilaterally change this country to its core’? Should anyone have that kind of power?”

It’s no secret that the “most powerful office in the world” grew even more powerful in the Bush-Obama years. Both presidents stretched the 2001 Authorization for the Use of Military Force into a wholesale delegation of congressional war powers broad enough to underwrite open-ended, globe-spanning war. Bush began—and Obama continued—the host of secret dragnet surveillance programs revealed by Edward Snowden—and others we’re still largely the dark about. And lately, on the home front, Obama has used the power of the pen to rewrite broad swathes of American law and spend billions of dollars Congress never appropriated.

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America’s center-left papers of record have lately begun to notice that the vast powers recent presidents have forged would be available to Trump as well. The New York Times’s Carl Hulse writes that Obama’s assertion of a presidential power of the purse could have ”huge consequences for our constitutional democracy…. How would lawmakers react if a willful new chief executive, unable to win money from Congress for a wall on the Mexican border, simply shifted $7 billion from another account and built it anyway?”

[Read the full story here, at Cato @ Liberty]

And a month ago, the Washington Post kicked off a series of half a dozen editorials warning what would befall the republic should Trump ascend to Real Ultimate Power: “A President Trump could, unilaterally, change this country to its core,” the Post’s editorialists argued, and the other branches won’t be able to stop him: “in the U.S. System, the scope for executive action is, as we will lay out in a series of editorials next week, astonishingly broad.”

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It was nice to see the Post editorial board, which had called Obama’s recess-appointments gambit “a justifiable power grab,” evince some concern about potential abuses of executive power. Through five more editorials, they’d go on to observe that a President Trump could, among other abuses: “launch wars”; “take the oil”; “assassinate foreigners who opposed him”; issue a secret legal opinion overturning the torture ban; “launch surveillance programs targeting foreigners without informing Congress”; pull out of NAFTA, start a trade war, and “destroy the world economy.” An imposing parade of horribles, all leading up to the limpest of takeaways: “the nation should not subject itself to such a risk.” In other words, don’t vote for Trump. OK, then: Problem solved?

I don’t disagree with the Post’s argument that Trump represents a unique threat to what remains of constitutional government. Read the rest of this entry »

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Obama: Rule of Law, Due Process, Constitutional Fidelity, and Separation of Powers ‘Sets Our Country Back’

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President Obama said Thursday that the Supreme Court’s 4-4 decision that will block his 2014 executive actions on immigration “sets our country back,” and is “heartbreaking” for the millions of illegal immigrants still in the country.

“Today’s decision is frustrating to those who seek to grow our economy and bring a rationality to our immigration system, and to allow people to come out of the shadows,” he said at the White House.

[Read the full story here, at Washington Examiner]

The 4-4 tie left in place a lower court ruling that found against Obama’s actions. But Obama cast the ruling as one that showed the Supreme Court was “unable to reach a decision,” and argued that it’s more evidence that the Senate needs to consider his nominee for the high court, Merrick Garland, so that the court cannot deadlock again.

“This is part of the consequence of the Republican failure so far to give a hearing to Mr. Merrick Garland,” Obama said.

Stay abreast of the latest developments from nation’s capital and beyond with curated News Alerts from the Washington Examiner news desk and delivered to your inbox.

Read the rest of this entry »


Barack Obama, Re-Founding Father

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It isn’t just ‘Obama’s power grabs.’ It’s a redesign of the Founders’ original vision

renocol_DanHenningerDaniel Henninger writes: To the list of questions Hillary Clinton will never answer, add one more: Would a second Clinton presidency continue and expand Barack Obama’s revision of the American system of government that existed from 1789 until 2009?

The central feature of Mr. Obama’s rewrite of what one might call the Founding Fathers’ original vision has been to abolish Congress. Yes, the 535 men and women elected to Congress still show up at the old Capitol building, as they have since November 1800.

“If you put the president behind the wheel of a car in front of the White House to visit Congress, he’d probably get lost.”

But once past passage of ObamaCare and Dodd-Frank, the 44th president effectively retired Congress from its historic function. If you put the president behind the wheel of a car in front of the White House to visit Congress, he’d probably get lost.

This is not a joke if you are one of the many million Americans the Re-Founding Father has commanded, via vast executive power, to do what he wants you to do. He did it again last week.

“This is not the Democratic Party of Lyndon Johnson, Hubert Humphrey, Jimmy Carter or even Bill Clinton. It is the progressive left wing, which won party control by defeating the Clinton machine in 2008. As a matter of ideology, it is ‘impatient’ with the pace of change possible under the pre-2009 system of checks and balances.”

EPA Administrator Gina McCarthy, whose neo-constitutional function is to serve as a primary executor of Mr. Obama’s re-dos, waved into existence a massive expansion of the Clean Water Act. Landowners across America woke up to discover that the EPA has designated ponds, creeks, rivulets, ditches, catch basins and water-filled potholes as subject to what the Clean Water Act originally called “navigable waters.”

From somewhere on Capitol Hill, a plaintive Sen. Heidi Heitkamp, a Democrat North Dakota’s voters bothered to elect in 2012, said: “It’s frustrating that after so much time, the EPA today decided to finalize this rule instead of . . . releasing a revised rule as our legislation would require.” Legislation?

ILLUSTRATION- DAVID GOTHARD

“With Congress rendered moribund, the new branch of the American political system is the federal enforcement bureaucracy.”

Conservatives by now are numb to Mr. Obama’s expansions of executive power. They call it an “abuse” of authority, and no doubt it is. “Abuse,” however, makes it sound like the whim of one politician, a Huey Long-like convulsion. This isn’t a one-off. This is how the modern Democratic Party governs. It is how a Clinton presidency would govern every day of the week.

[Read the full text here, at WSJ]

This is not the Democratic Party of Lyndon Johnson, Hubert Humphrey,Jimmy Carter or even Bill Clinton. It is the progressive left wing, which won party control by defeating the Clinton machine in 2008. As a matter of ideology, it is “impatient” with the pace of change possible under the pre-2009 system of checks and balances. Former law professor Elizabeth Warren could teach seminars on the progressive Re-Founding of America.

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“Former law professor Elizabeth Warren could teach seminars on the progressive Re-Founding of America.”

Barack Obama, channeling decades of theory, says constantly that the traditional system has failed. He said it in his 2011 Osawatomie, Kan., speech: “It doesn’t work. It has never worked.” He has attacked Congress repeatedly as a failed institution, teeing it up for mass revulsion just as he did the 1%.

“This is not a joke if you are one of the many million Americans the Re-Founding Father has commanded, via vast executive power, to do what he wants you to do. He did it again last week…Landowners across America woke up to discover that the EPA has designated ponds, creeks, rivulets, ditches, catch basins and water-filled potholes as subject to what the Clean Water Act originally called ‘navigable waters.'”

With Congress rendered moribund, the new branch of the American political system is the federal enforcement bureaucracy. Read the rest of this entry »


[VIDEO] The Hammer: Affordable Care Act Language Is ‘Not Ambiguous At All’

 “If the D.C. Court is upheld, Obamacare is over. It won’t survive.”

Charles Krauthammer believes that the language in the Affordable Care Act saying that subsidies are to be provided through state exchanges is unambiguous…He referred to a point made earlier today on NRO by Andrew McCarthy, who argued that even if you accept the government’s defense that it was indeed a drafting error, Congress is the only instrument in the constitutional system that can change the error.

“It is not in the power of the executive to fix what’s written in the legislation.”

The Corner


George F. Will: Stopping a Lawless President

Barack Obama, Joe Biden

In The Washington PostGeorge F. Will writes: What philosopher Harvey Mansfield calls “taming the prince” — making executive power compatible with democracy’s abhorrence of arbitrary power — has been a perennial problem of modern politics. It is now more urgent in the United States than at any time since the Founders, having rebelled against George III’s unfettered exercise of “royal prerogative,” stipulated that presidents “shall take care that the laws be faithfully executed.”

“Presidents must exercise some discretion in interpreting laws…Obama, however, has perpetrated more than 40 suspensions of laws.”

Serious as are the policy disagreements roiling Washington, none is as important as the structural distortion threatening constitutional equilibrium. Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity and qualitatively different.

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Regarding immigration, health care, welfare, education, drug policy and more, Obama has suspended, waived and rewritten laws, including the Affordable Care Act. It required the employer mandate to begin this year. But Obama wrote a new law, giving to companies of a certain size a delay until 2016 and stipulating that other employers must certify they will not drop employees to avoid the mandate. Doing so would trigger criminal perjury charges; so he created a new crime, that of adopting a business practice he opposes.

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Presidents must exercise some discretion in interpreting laws, must have somelatitude in allocating finite resources to the enforcement of laws and must havesome freedom to act in the absence of law. Obama, however, has perpetrated more than 40 suspensions of laws. Were presidents the sole judges of the limits of their latitude, they would effectively have plenary power to vitiate the separation of powers, the Founders’ bulwark against despotism.

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Congress cannot reverse egregious executive aggressions such as Obama’s without robust judicial assistance. It is, however, difficult to satisfy the criteria that the Constitution and case law require for Congress to establish “standing” to seek judicial redress for executive usurpations injurious to the legislative institution .

Courts, understandably fearful of being inundated by lawsuits from small factions of disgruntled legislators, have been wary of granting legislative standing. However, David Rivkin, a Washington lawyer, and Elizabeth Price Foley of Florida International University have studied the case law and believe that standing can be obtained conditional on four things:

That a majority of one congressional chamber explicitly authorizes a lawsuit. That the lawsuit concern the president’s “benevolent” suspension of an unambiguous provision of law that, by pleasing a private faction, precludes the appearance of a private plaintiff. That Congress cannot administer political self-help by remedying the presidential action by simply repealing the law. And that the injury amounts to nullification of Congress’s power. Read the rest of this entry »


The President’s Power Grab

Critics have warned that the president's promise to act in the face of congressional gridlock might amount to executive overreach. (Alex Wong / Getty Images)

The president’s executive overreach erodes constitutional checks and balances (Alex Wong / Getty Images)

Bambi is not a dictator, but there is a danger in his aggregation of executive power

Another Op-Ed warning about Executive overreach in the Obama era is not unique. What is unique, is that it’s in the LA Times. Does Obama want to be a ruler, instead of a president?  Interestingly, the LA Times included this link in the body of the article: Photos: A peek inside 5 doomed dictators’ opulent lifestyles. Think Obama’s personal luxury is overstated? Kings and Queens are required to manage their affairs more modestly than modern U.S. presidents. As Mark Steyn likes to point out, the operational cost of the White House exceeds operating cost of all the remaining Monarchies on earth, combined.

Jonathan Turley writes:

Recently, a bizarre scene unfolded on the floor of the House of Representatives that would have shocked the framers of the Constitution. In his State of the Union address, President Obama announced that he had decided to go it alone in areas where Congress refused to act to his satisfaction. In a system of shared powers, one would expect an outcry or at least stony silence when a president promised to circumvent the legislative branch. Instead, many senators and representatives erupted in rapturous applause; they seemed delighted at the notion of a president assuming unprecedented and unchecked powers at their expense.

“The United States is at a constitutional tipping point: The rise of an uber presidency unchecked by the other two branches.”

Last week, Obama underlined what this means for our system: The administration unilaterally increased the transition time for individuals to obtain the level of insurance mandated by the Affordable Care Act. There is no statutory authority for the change — simply the raw assertion of executive power.

Our system is changing in a fundamental way without even a whimper of regret. No one branch in the Madisonian system can go it alone — not Congress, not the courts, and not the president.

This massive shift of authority threatens the stability and functionality of our tripartite system of checks and balances. To be sure, it did not begin with the Obama administration. The trend has existed for decades, and President George W. Bush showed equal contempt for the separation of powers. However, it has accelerated at an alarming rate under Obama. Of perhaps greater concern is the fact that the other two branches appear passive, if not inert, in the face of expanding executive power. Read the rest of this entry »


Quis Custodiet Ipsos Custodes?

Quis custodiet ipsos custodes?

“Who Will Guard the Guardians?”: Restraining Sovereign Power Using Entrepreneurial Communities

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At  posts:

Economist Barry Weingast writes, “the fundamental political dilemma of an economic system is this: A government strong enough to protect property rights and enforce contracts is also strong enough to confiscate the wealth of its citizens.”

How then do we restrain the predatory powers of government to an appropriate scope? How do we keep powerful interests from capturing government institutions to use against others? In other words, “Who will guard the guardians?”

Weingast has an easy answer:

The answer concerns the design of political institutions that credibly commit the state to preserving markets, that is, to limits on the future political discretion with respect to the economy that are in the interests of political officials to observe.

The romance surrounding America’s founding and the drafting of the Constitution is the story of this struggle. Unfortunately, actually ‘designing’ these institutions is exceedingly hard. And even if we were able, people disagree over the ideal size of government.

Read the rest of this entry »