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An extraordinary thing happened in Washington, D.C., this week. Appearing before a House Judiciary subcommittee, several constitutional scholars forthrightly and unmistakably outlined the leading danger to the survival of our constitutional republic: the usurpation of powers by President Barack Hussein Obama.
This wasn’t just me, a non-lawyer, perplexed by how out-of-whack constitutional checks and balances have become and, in particular, how enfeebled the legislative branch is. This wasn’t even Mark Levin, a constitutional lawyer himself, explaining to his radio audience that we are living in “post-constitutional” times.
This was, for starters, Jonathan Turley, a liberal Georgetown law professor, who, noting that he once voted for Obama, nonetheless warned America that the concentration of executive branch powers, having accelerated under George W. Bush, is approaching a crisis under Obama. “The problem with what the president is doing is that he’s not simply posing a danger to the constitutional system,” Turley said. “He’s becoming the very danger the Constitution was designed to avoid.”
Turley was referring to the imperial-style powers Obama’s executive branch has amassed to the detriment of the Constitution’s system of checks and balances. When functional, checks and balances prevent any one branch of government (executive, legislative, judiciary) from becoming more powerful than any other. Today, that system is broken.
“Each branch is given the tools to defend itself, and the framers assumed that they would have the ambition and institutional self-interest to use them,” Turley stated in written testimony. “That assumption is now being put to the test as many members remain silent in the face of open executive encroachment by the executive branch.”
Nicholas Rosenkranz, a constitutional law professor at Georgetown also affiliated with the libertarian Cato Institute, cogently laid out several examples of executive branch encroachment. The first was suspending the “employer mandate” in Obamacare via presidential decree (via blog post!) at the White House website; the second was enforcing by executive order the DREAM Act, despite its (repeated) failure to pass in Congress and become the law of the land; the third was presiding over an IRS that has discriminated against and punished political opponents in the tea party.
According to the Constitution, Rosenkranz explained in his testimony, “The president cannot suspend laws altogether. He cannot favor unenacted bills over duly enacted laws. And he cannot discriminate on the basis of politics in his execution of the laws. The president has crossed all three of these lines.”
Another witness was Michael Cannon, director of health policy studies at the Cato Institute. Emphasizing the non-partisan urgency in the need to address presidential overreach, Cannon noted he was not a Republican and that he in fact supported Obama’s social policies regarding women, minorities and homosexuals. Cannon outlined numerous unilateral actions President Obama has taken to retool the Affordable Care Act (Obamacare) – in effect, making law, which is not within a president’s powers. According to Cannon, it is no longer accurate to say the Affordable Care Act, as passed by Congress, is still the law of the land.
Cannon’s testimony continued: “Today, with respect to health care, the law of the land is whatever one man says it is – or whatever this divided Congress will let that one man get away with saying. What this one man says may flatly contradict federal statute. It may suddenly confer benefits on favored groups, or tax disfavored groups without representation. It may undermine the careful and costly planning done by millions of individuals and businesses. It may change from day to day.” And then: “This method of lawmaking has more in common with monarchy than democracy or a constitutional republic.”
“More in common with a monarchy”? I don’t think I’ve ever heard such dire testimony. Will it get Congress’ attention? It got mine. What about the American people? Will they be alarmed by what Turley describes as a “shift of power within our tripartite government toward a more imperial presidential model”? Will they let their representatives know they better start checking and balancing presidential powers that these same representatives have permitted to run amok?
This takes us to another problem, one I’m not certain the founders provided an answer for: a Fourth Estate (the press) in the tank for the current chief executive. In other words, will the American people even hear much about this constitutional case against Barack Obama? So far, most media have yawned. Or, in the case of Dana Milbank in the Washington Post, misreported the hearing as a meeting of impeachment-obsessed Republicans. (At his blog, Turley went so far as to correct Milbank, writing that impeachment “actually came up little in the hearing, which was 99 percent focused on the separation of powers and the rise of an uber-presidency under Bush and Obama.”)
Impeachment and even elections, that natural correction mechanism, aside: “There is one last thing to which the people can resort if the government does not respect the restraints that the Constitution places on the government,” Michael Cannon said in the most dramatic remarks of the session. “Abraham Lincoln talked about our right to alter our government or our revolutionary right to overthrow it. That is certainly something that no one wants to contemplate,” he continued. “If the people come to believe that the government is no longer constrained by the laws, then they will conclude that neither are they.”
And then what happens?