Lengthy post. Obama vs the Constitution.
What if Bush had done any of this?
David Harsanyi has a very good question that should be posed to every Democrat who has turned a blind eye to everything that Obama has done to extend the power of the executive at the expense of Congress.
Enforce laws at your political leisure. Name recess appointments when there’s no recess. Legislate through regulation. Rewrite environmental laws. Rewrite immigration policy. Rewrite tax legislation. Bomb Libya. Bomb Syria. All by fiat. All good. The only question now is: what can’t Barack Obama do without Congress?Every day seems to bring forth another story about what Obmaa has done or intends to do to ignore the constitutional limitations on the power of the president. A constitution, by the way, that Barack Obama swore to preserve, protect, and defend. The most recent was the news that he wants to forge a sweeping multi-national agreement on climate change without submitting it to the Senate. And the only excuse given is that the issue is so important and the Senate won't act. As if no president has ever faced a recalcitrant Congress.
“The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all, and that’s what I intend to reverse when I’m President of the United States of America,” then-candidate Obama declared years ago. You can imagine what might have transpired if George Bush had argued that a lack of seriousness regarding a “broken” Social Security program – and the obstruction of his reform efforts – meant that Democrats had ceded the political field on the issue and should be sidestepped. It might not have gone over that well. Then again, liberal pundits seem to be under the impression that the issues we face today are the most significant in the history of mankind. Every liberal hobbyhorse becomes a moral imperative. And as frustration mounts, the abuses grow and the excuses get uglier.But, apparently, there is some invisible clause, as Charles C.W. Cooke writes, in the Constitution that allows Democrats to ignore the limitations it puts on the presidency - the "We Can't Wait" clause.
Justifying his infringements, the president typically submits that Congress has in some way abandoned its role, and that he is obliged by expedience to step in. This asseveration rests unsteadily upon the false presumption that Congress’s role is to agree with the executive branch, rather than to make law. It is not. Even if we were to agree wholeheartedly with Barack Obama that Congress’s judgment is poor, it would remain the case that there is no provision in the Constitution that makes the legislature’s absolute role conditional upon its good sense. On the contrary: If the president can’t get Congress to agree to what he legally needs them to agree to, he doesn’t get to do what he wants to do. This is so whether Congress is packed with angels or with clowns. It is so whether Congress adores the president or loathes him, whether it is active and engaged, and whether it is idle and lackadaisical. And — crucially — it is so whether Congress is popular or it is unpopular. Public opinion matters in the American system come election time, mass plebiscites serving as the basis by which our representatives are chosen and our sentiments established into law. But it has no bearing on the day-to-day legal operation of the government, nor upon the integrity of the rules that govern that operation. If one of the elected branches proves recalcitrant, steadfastly ignoring what the voters want, the remedy is electoral, not legal. The integrity of the constitutional order, suffice it to say, is not contingent upon the transient public mood. That way lies chaos.Seth Lipsky explains why the procedures set up in the Constitution for approving treaties makes so much sense.
Knowing that appeals to raw power are jarring to the average ear, those who have taken to defending the president’s imperialism tend instead to sell their wares by introducing complexity where it does not belong. It is the case that some parts of our Constitution are vague and open to interpretation. But not all. Alas, over the last six years, we have been told that there is considerable nuance even in those portions that have been taken for more than two centuries to be utterly straightforward. Does the president have to faithfully execute the laws as they are written? That, apparently, is complicated. Does the ratification of treaties really work in the manner that the Constitution prescribes? Ooh, a tricky one! What about Article I, which makes it clear that all legislative powers belong to the legislature? Sure, but only if Congress behaves itself. Must the executive branch adhere to the established budget and borrowing process, or can it mint trillion-dollar platinum coins if Congress won’t acquiesce with its demands? This too, it seems, is unclear. Can the president deem the Senate to be in recess and make appointments without them? Why not, man? So deeply has this rot set in — and so ready have political opportunists proved themselves to abdicate their responsibilities in favor of political victory — that we have been treated to the sight of a three-term senator and majority whip claiming with a straight face that the president can merely “borrow” congressional power if it is not forthcoming.
He must do no such thing, for an assault on any part of our settlement is an assault on the whole. To the extent that Obama has been accorded political power, he may use it, and use it to the fullest. Beyond that, he is tightly and rightly circumscribed in his authority. As a matter of both propriety and legal rectitude, there can be no place within the American constitutional order for a president to menace Congress with threats. Not now, not tomorrow, not ever. Like Sir Thomas More in A Man for All Seasons, Barack Obama would profit from the recognition that it is for his own good that he is expected to give the Devil the benefit of the law. By demonizing one’s opponents and making legal excuses in result, it is easy to make the men in the cheap seats applaud and holler. But before long, somebody else will be taking the oath, and wondering, as he promise the best of his ability, just what he might put over on the rest.
In recent years it has grown apparent that our country is in what I like to call a “constitutional moment,” and this example is a humdinger. Presidents are perfectly entitled to sign treaties that haven’t been approved by the Senate. That’s part of the process. They ink all sorts of sketchy stuff, but it can’t become binding as supreme law of the land until it gets through the Senate.This is basic Civics 101. My 10th grade students all understand this. You would think that someone who prides himself on having been a professor of Constitutional Law would understand this. And, of course, he does understand it. But he has just decided that if he wants to do something and he can't get the Senate for a treaty or the whole of Congress for a law to go along, then dang it he'll just have to do it himself and blame the Republicans for his being forced to ignore the Constitution. And just how does this differ from the sort of tyranny that the Constitutional checks and balances were designed to protect against?
The Senate gives it a chance to simmer. Hearings are held. People with interests get to testify. The Senate is where the states, key parties in the American contract, get their say. Sometimes, treaties don’t get ratified and are laid aside. This happened to the Strategic Arms Limitation Treaty known as SALT II. President Carter signed it, but the Senate didn’t trust the Soviet boss at the time, Leonid Brezhnev, nor anyone else in the Kremlin camarilla. So it refused to ratify the treaty. No one was the worse for wear.
America worked for years on the Law of the Sea Treaty, a vast giveaway of oceanic wealth that we had the best technology to exploit, but the measure didn’t get to first base in the Senate, either. There are still politicians and diplomats and lawyers out there hoping to persuade the Senate to act. Fair enough. I wouldn’t ratify the Law of the Sea Treaty for all the sardines in the ocean. But trying to convince the Senate is fair enough. If it’s one thing to try to persuade the Senate, it’s another thing to take a treaty that the Senate is so clearly unwilling to ratify, as with global warming, and enter into a conspiracy to dodge the Senate and evade the Constitution — a document that every public official in our country is sworn to support.
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