Ever since 1803 activist judges have "legislated from the bench" issuing rulings based on personal or political considerations rather than on existing law thereby usurping the constitutional function of Congress under Article I of the Constitution.
More recently BO has undertaken this practice through executive orders that change legislation (e.g., "he has unilaterally revised, delayed, or reinterpreted ObamaCare no fewer than 38 times" – WSJ June 26), only partially execute legislation (drug laws), or selectively ignore legislation (immigration laws especially in AZ). In brief, in so doing BO has unilaterally waived his oath to "faithfully execute the Office of President of the United States" & has also shown that he is anything but a lame duck for the next two & a half years.
To fight this assault on the Constitution's separation of powers Speaker of the House John Boehner is planning to sue BO following the Rivkin-Foley legal theory that when the president usurps core legislative powers that Congress as an institution does have standing to bring suit to remedy the offense.
One of the basic mindset changes that is needed in America today concerns the Supreme Court – namely that it is not superior to the two elected branches but rather is supreme only over the Judicial Branch. The other two branches are their equal and if anything the elected branches are higher in times of tension between the branches.
With this backdrop below is my letter that was published today in the WSJ that addresses this issue.
Dear Editor,
I am afraid that the Journal is preparing for another slide down the same slippery slope with the same people as we did in 2012 by recommending that Congress sue President Obama for "unilaterally waiving his duty to faithfully execute statutes" (The Standing to Sue Obama – June 16).
I cringe every time I hear of one of the two elected branches turning to the judicial branch for resolution of some problem that should be handled through "the court of public opinion" known as elections.
Just like in this current legal theory regarding Congress's standing to sue, David Rivkin was the "legal innovator behind the challenge to ObamaCare's individual mandate" in 2012.
The problem is that in deciding the ObamaCare case the Court not only upheld the ObamaCare law but in so doing set a very dangerous legal precedent concerning Congress's power to tax. Since we are dealing now with exactly the same people as two years ago the chances of another manipulated disastrous decision is very real.
You say that "short of impeachment, there is no way for Congress to defend its rights." The power of the people is superior to that of any of the branches and if an elected official is way out of line such conduct can be remedied in the next election.
But if the conduct is so egregious that it requires immediate attention the Constitution says impeachment can be done for "high Crimes & Misdemeanors." I don't know of a higher crime than the President forsaking his oath "to the best of (his) Ability, (to) preserve, protect, and defend the Constitution of the United States" which includes enforcing & faithfully executing all of the statutes that he signed into law.
Hi Doug - Enjoyed your editorial. You make a good point, why do we need to have the courts decide an issue that elections can solve? The danger, as you pointed out is setting precedence. Also, as you tactfully stated the Supreme Court stuck it to us calling ObamaCare a tax.
ReplyDeleteDoug - I caught your letter in the WSJ this morning. Onward!
ReplyDeleteRight on Doug. Boehner is picking the wrong fight here. Instead he should focus on leading the Republicans to explain how socialist policies and an imperial presidency are damaging our nation
ReplyDeleteDoug - Great Article...
ReplyDeleteOn June 27, by a vote of 9-0, the U.S. Supreme Court struck down Obama’s unconstitutional overreach. This ruling represents a resounding and well-deserved defeat for the Obama administration. However, how does the Supreme Court enforce it? As you know, President Jackson ignored the Supreme Court. Will Obama follow Precedence? Also, it is hard to see how the legislative branches have equal power when the President is Commander & Chief of the strongest Army on earth.
SS has pointed out several times that President Jackson ignored the Supreme Court. I too have been wondering whether or not BO will ignore their rulings that are not in his favor. The legislative branch does have the power of the purse & that could bring a rogue commander-in-chief in line.
DeleteHamilton wrote in The Federalist #78 that the executive has the sword & the legislature the power of the purse - so how has the Supreme Court come to have all of the power they possess? - to be explained in a future post.
Hi Doug - Surprisingly, we may have received Obama’s answer to the recent Supreme Court decision, re Obama’s unconstitutional overreach, much sooner than I expected. On June 27, in Minneapolis Obama made the following comment:
Delete“We can’t afford to wait for Congress right now, and that’s why I’m going ahead and moving ahead without them wherever I can now. Republicans are mad at me for taking these actions. They’re not doing anything, and then they’re mad that I’m doing something.”
Next, the Cochran/McDaniel Senate race in Mississippi can only be classified as an abomination.
Doug - The problem simply stated is all 3 branches have consistently overstepped their bounds as spelled out in the Constitution. What is particularly frustrating is that they do not do things they are charged to do (such as declare War, defend our borders, etc.) but love to stick their noses in areas that they have no legal right to.
ReplyDeleteA big part of the problem is we tend to elect lawyers, whom love to parse the language to suit their agenda and social reformer types who seem to believe they have the right to legislate and regulate us to death.
And unfortunately the people allow it as many of them, whether they are liberal, conservative or moderate love to play the "victim". The "people" simply set themselves up.
So the lawyers and social reformers keep getting elected and appointed and we end up with the "47%" and growing problem.