Free Markets, Free People

House Judiciary Committe

Lawless and Unbound

A primary reason for structuring our government with the checks and balances it has was to prevent a concentration of power. The POTUS was specifically limited because of the position’s duties, and the danger exercising them could mean to the freedom of the people. America didn’t want a king. Well, we may gotten one anyway.

The House of Representatives held a hearing yesterday on the Obama Administration’s exercise (or non-exercise) of it powers, and asked whether or not the Executive branch was properly following the “take care” clause of the Constitution. AllahPundit provides some commentary on the hearing, focusing Prof. Jonathan Turley’s testimony:

If you have time for only one snippet, though, skip to 2:33:00 for his list of Obama’s five most egregious violations of separation of powers. Some are familiar to you — declaring that he wouldn’t deport illegals who might qualify for DREAM, refusing to enforce the employer mandate, etc — but the ones about him shifting money around without regard to how Congress has appropriated it might not be. Turley makes two valuable points here. One: Courts tend to give the executive a wide berth in separation-of-powers challenges on the theory that Congress has the power of the purse and can defund any executive agency it likes. But that’s not true anymore, he says. Obama, by defying appropriations, has claimed some of that power for himself. What check does Congress have left? That brings us to point two: Even if Congress can’t stop Obama, the courts can. The problem there, though, says Turley, is that O and the DOJ have argued successfully in many cases that no one has standing to sue him because no one can show an injury from his power grabs that’s concrete enough to justify a federal lawsuit. So the courts can’t check him either.

The only check left, it would seem, is through elections. Which isn’t a check at all on a term-limited President. Of course, there’s always the impeachment route, but that doesn’t seem likely (despite what some in the media think). Turley thinks it’s not even being considered:

Now, I was the lead witness but I was testifying in through the haze of a raging flu. So I went back and checked. Impeachment was mentioned in passing but it was quickly discounted. Indeed, I specifically testified that, as someone who testified at the Clinton impeachment, I did not view such a measure as warranted given the ambiguity of past decisions. Indeed, the references to impeachment were made in the context of the loss of meaningful options for Congress to respond to such encroachments when the President reserved the right to suspend portions of laws and fought access to the courts in challenging such decisions. Yet, the Post simply reported that the word impeachment came up (not surprisingly) in a discussion of the options given by Framers to Congress in dealing with unlawful presidential conduct.

During the hearing, not only did I discount impeachment as an option, but a Democratic member specifically asked the panel about the references to impeachment. No one could remember how it came up but it was clear that no one thought it was a substantial issue — or significant part of the hearing.

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In a discussion of checks on the presidency, impeachment is one of the enumerated options given to Congress. Notably, past judicial opinions involving such separation of powers controversies have also discussed impeachment with the power of the purse as devices given to the Congress. In discussing impeachment with these other powers, courts were not advocating impeachment or suggesting that it was a viable solution in that given case.

In the end, since the Senate is held by the same party as the President, impeachment isn’t a serious option. But the Obama Administration’s unwillingness to faithfully execute the laws passed by Congress remains a serious issue. At this point, the only options left would seem to be either shutting the government down, or refusing to pass any new laws since the POTUS won’t execute them anyway. And whither goes the Republic.