As a lame-duck president threatens to create – by executive fiat – what could be the biggest illegal-alien amnesty program in U.S. history, members of Congress will have their intestinal fortitude put to the test.
They have limited options of how to stop a runaway president intent on operating outside the bounds of the Constitution, but they do have options.
To do nothing means allowing the institution of Congress to be essentially mocked.
"We need to publicly counter the president," Rep. Michele Bachmann, R-Minn., told WND Thursday. "He has no legal basis for an executive grant of amnesty. None."
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She described such a move as "a crass, politically motivated unconstitutional power grab."
Bachmann said Congress should respond in no uncertain terms, pulling the financial rug out from under President Obama.
"The House should defund any means of amnesty implementation and pass legislation to undo the president's actions," she said. "This cannot go into effect."
Rep. Steve Stockman, R-Texas, was equally clear on where he stands, but he's still waiting for further signals one way or the other from Obama just two days after a sweeping Republican victory in the midterm elections.
"It's ridiculous," Stockman told WND in a phone interview. "He says, 'if you'll just compromise with me,' which means 'have it my way.' His idea of compromise, it's a myth."
If Obama does grant amnesty to millions of people in the country illegally, Stockman said he believes the power of public opinion would be on the side of Congress to act.
"If he does that, I think there will be a tremendous outcry. He's already signaled what he wants to do, and I don't think he's going to back down from it," he said. "I think there are so many people that would just go absolutely nuts if he did that.
"Even (Sen.) Mitch McConnell (R-Ky.) said doing that would just absolutely poison the well."
As for defunding Obama's executive orders, Stockman said the Republican-controlled House always had the ability to do that, long before Tuesday's election wave, but it never did. The media, he said, characterized last year's dust-up over raising the debt ceiling as Republicans trying to "shut down the government," when in reality it was the president who was shutting down the government by refusing to sign off on a budget.
But this time around, it might be different. While the Republican leadership has more often than not failed to stand up to Obama, his political standing has been severely curtailed by Tuesday's election results.
So if he were to unilaterally grant legal status to 4 or 5 million illegal immigrants, Stockman said the House might be forced to act, using its power of the purse. And, in the case of some Republican leaders in the House, it may mean going against their own personal desires for amnesty.
"I tell you what, if Obama does that, the leadership is going to be put in such an awkward position," Stockman said. "It's going to put them in a boxed-in situation where they're going to have to fight Obama, for once, if he does legalize that many people. I think they'll be forced to do something."
He said the truth is, Americans of all races, whether black, white or Hispanic, are getting angry at both parties.
"They're trying to say the results were due to low turnout. The truth is, we had the same turnout that we have for all midterm elections. They're getting angry," Stockman said. "They say Hispanic voters are most concerned about immigration reform. It's just simply not true. The economy is the top issue for all races."
The power of the purse
Sen. Mike Lee, R-Utah, flatly rejected Obama's plan. A constitutional attorney in his private career, Lee said it's not difficult to determine whether Obama's actions would pass constitutional muster.
"No. Absolutely not," he told WND. "He doesn't have the power to issue green cards to people who are not eligible for green cards under the law. The first clause of the first section of the first article of our Constitution says that all 'legislative powers herein granted shall be vested in a Congress, which shall consist of a Senate and a House of Representatives.'"
Lee said the power of the purse is the strongest weapon lawmakers have to stop an unconstitutional policy in its tracks.
"We think that Congress needs to do everything it possibly can to oppose President Obama's threat to undo existing immigration law by executive order," he said. "We believe that Congress needs to use its power of the purse to withhold funds from any effort on the part of the president to issue green cards to people who aren't eligible for them under the law."
Growing list of lawless acts
Tom Fitton, president of the government watchdog organization Judicial Watch, said Congress needs to not only act to stop future lawless edicts coming from the Oval Office but to undo those that have already been issued.
And the list is lengthy.
Obama has moved unilaterally to waive rules for selected companies seeking relief from the Affordable Care Act as well as certain environmental rules. He has changed the timetable for when various ACA provisions kick in. He has rewritten the rules with regard to the Fair Housing Act, essentially requiring cities and counties to rewrite their zoning laws if certain suburban areas do not meet racial quotas for housing "diversity" tied to acceptance of federal block grants. Then he blocked the enforcement of immigration laws.
"Judicial Watch is analyzing a number of direct legal challenges and there may be more legal activity if additional steps are taken by the lawless presidency," Fitton told WND.
Judicial Watch already has an open lawsuit against the employer mandate in the Affordable Care Act. The organization has also filed suit to get the government to hand over records in the IRS case, specifically seeking Lois Lerner's missing emails.
"We've been stymied by corruption in the administration. But we've got a record of challenging this presidential lawlessness, and to me this is what's stuck in voters' craw," Fitton said. "This is what Republicans really need to respond to, along with honest Democrats. The people don't want a president who thinks he's above the law, and they want them to stop him."
Defiance of Congress
The blueprint for how to handle a president who oversteps the bounds of his constitutional authority has already been drawn up by the Congressional Research Service.
The CRS released a report in April of this year that addresses in detail the topic of executive orders.
While such orders are generally accepted as part of a president’s authority, they are not in the Constitution, and there are limits, the report says.
The least authoritative executive orders, or those resting on the shakiest legal ground, are those in which the president "takes measures incompatible with the express or implied will of Congress … for he can only rely upon his own constitutional powers minus any constitutional powers of Congress over the matter,” the report stated, quoting directly from a Supreme Court opinion by Justice Robert H. Jackson in the landmark case of Youngstown Sheet and Tube Co. v. Sawyer.
“Congress may revoke all or part of such an order by either directly repealing the order or by removing the underlying authority upon which the action is predicated. Either of these actions would appear to negate the legal effect of the order,” the research service said.
Fitton said defiance of the "express or implied will of Congress" is exactly what President Obama would be doing if he unilaterally enacted amnesty.
Fitton said it's quite possible the president has seen the writing on the wall and will not attempt any further amnesty programs beyond what he's already done, which is substantial in its own right.
"That's one interpretation," he said, that could be taken away from his speech to the nation Wednesday.
"The other interpretation, also fair, is that it's his view that 'I will do what I want and the only way you're going to stop me from violating the Constitution and continuing to eviscerate the rule of law, is for Congress to do what I want,'" Fitton said. "It's the Chicago way. The president is the head of a gangster government, and he's not used to talking in any way about anything, with anyone, that would bring comfort to those who believe a president is supposed to operate within the bounds of a constitutional government."
Krauthammer's solution
The issue also came up on Bill O'Reilly's show Wednesday night of Fox News.
After O’Reilly said an Obama executive amnesty order would result in his impeachment, his guest, Charles Krauthammer, advised against that.
O’Reilly then asked Krauthammer how the government could stop Obama from proceeding with his amnesty plan.
Krauthammer advised three things: First, Congress can cut funding. Second, announce that on the day the next president is inaugurated (if he is a Republican), the new president will kill Obama’s executive order, which exists only as long as another president doesn’t change things. Third, encourage private lawsuits against Obama for unconstitutionally usurping Congress’ authority regarding immigration policy.
Krauthammer said private lawsuits, as opposed to those originating in Congress, would be heard by the courts.
Fitton said Benghazi, the IRS scandal, the border crisis, Ebola and the "Fast and Furious" scandal are what drove voters to take out their anger against Obama's party on Tuesday.
'Our house is on fire'
"Our house is on fire, no one is protecting our families, and that has got to be priority one for our Congress, which has been duly elected to take that up," he said. "They can't come in and think, 'We're just going to legislate as we normally would.' We have a president who's off the rails, who thinks he can act as legislator and judge and executive all at once and uses his office to destroy and attack his political opposition."
Fitton said Congress should go on the offensive, rather than lie back and wait for Obama to act.
And that could take the form of launching independent prosecutors to look into the president's involvement in the various scandals that have enveloped his administration.
"We need to look at what crimes have gone unprosecuted and focus on getting grand juries going. Why has there been no grand jury on Solyndra? Why not on Fast and Furious?" Fitton asked. "Grand juries and independent prosecutors can do wonders to check an administration like this. We should get an IRS grand jury going. You've got to focus on getting those grand juries and criminal investigations going. Conservatives have an obligation to see to anti-corruption and reform, and there are opportunities for both parties in that area."
Under the Dodd-Frank banking reform bill, lending institutions were placed under a "stress test" to measure their capitalization and find out how well they could stand up to another economic meltdown.
Fitton said Congress has been under a similar type of test.
"Obama's been a stress test for Congress in its oversight responsibilities," he said. "And Congress has obviously failed the test."
They get another chance to earn a passing grade now that the people have spoken in a wave election.
While other presidents have used as many or more executive orders, Fitton said it's not about the numbers. It's about the type of orders being issued.
"If Bush issued 75 orders for Postal Service pensions, that would not be the same as Obama and the DREAM Act, where the president took action that Congress specifically prohibited," he said. "These type of actions, bypassing of Congress, are stealing our rights to govern ourselves under the Constitution. That's the civil rights issue of the Obama administration. I mean, your vote doesn't count anymore. He's hijacked that. We've got to get our government back under control."