Monday, November 24, 2014

The Unconstitutional Executive Order

Unconstitutional: “You keep using that word. I don’t think it means what you think it means.” Apparently the president thinks it means, "Something I'm not willing or politically ready to do at this time, but is subject to change on my whim."
There are collections of video of Obama saying, at least a couple dozen times, that acting on his own to change immigration law is unconstitutional (example below). Then, of course, he did that just last Thursday, claiming this was clearly within his power. Was he lying or misinformed before? Or is he lying and misinformed now. Since the Constitution hasn’t changed in the interim, it isn’t possible for him to be right on both sides.


There is also a chart going around comparing how many executive orders each president has enacted per year. FDR was by far the most extreme, enacting around 290 per year—for more years than any other president, to boot. George W. Bush has fewer (about 36 per year) than Reagan (about 47 per year). Obama is only slightly lower than George W. Bush, at 33-ish.
But this is the wrong question. Of course it is legal for a president to give executive orders. The purpose of an executive order is to direct the people working under him as to how to execute the laws duly enacted by Congress. Executive orders are meant to be procedural. And they must be simply a way to see to the carrying out of the laws; they cannot change the laws or create new laws.
Much has been made about the executive order by Reagan to allow for amnesty back in 1981—which was a directive on how to go about executing the decision made by the democrat-led Congress. There isn’t an issue with the legality of that executive order—although plenty of people can see that the failure to close the border as promised simply invited more of the illegal immigrant problem, rather than resolving it.
The question for last Thursday’s edict isn’t whether the president has the right to give an executive order; he does. The question isn’t whether he can act on immigration policy; he can, as Reagan did. But only as Reagan did—following the law as defined by Congress, following the Constitution.
If you have a president, say Reagan, who uses executive orders liberally but perhaps not even a single time for any purpose but directing the executive branch in how to keep the law, then you have no executive order problem. Then, suppose you have another president, say Obama, who less frequently gives executive orders but often as an edict to create law rather than to follow laws set by Congress, then each of those offenses is breaking the law. Party doesn’t matter. The policy itself—along with its efficacy or intent—doesn’t matter. The color of the president matters not a whit. What matters is the breach of the law.
The president cannot act extralegally. He cannot make law. We do not live in a monarchy, dictatorship, potentate, banana republic, or any other tyranny. We live in a constitutional republic. We have a written law granting only limited enumerated powers to the federal government, so that our God-given natural rights are not infringed.
Can a president act beyond those enumerated powers? Presidents have. This president does. But not legally. Presidents have typically gotten away with exertion of power beyond what is granted depending on their popularity. That is not the case now. This president isn’t popular. His policies are not popular. His edicts are notably unpopular. He acts in the face of those negatives.
So the next question is, How do we react, to limit the damage of his acting beyond his authority in direct conflict with the limits guaranteed in our Constitution?
The constitutionally designed response is impeachment. But, despite his lack of popularity or approval, he does have media control, so the fear in the hearts of congressmen is significant. Impeachment is time consuming, and takes a sizable measure of focused energy and political capital. It’s not going to happen when this man has only two more years in office.
So, the additional steps are to stonewall the illegal acts. Defund anything that relates to executing his orders. Targeted defunding—not just refusing to agree to a continuing resolution to keep spending as the president sees fit, as an alternative to shutting down the government. One advantage of now having a GOP Senate is that we can actually pass a budget—something the democrat-led Senate has failed to do every single year. It’s easier to target spending in an actual budget, so that’s a good thing, if the Congress will have the stomach to do their job.
Additionally, Senator Ted Cruz is suggesting that no political appointments should be approved until the president rescinds his illegal orders. He should not be empowered by sycophants who will act on his orders in contrast to law. Interesting idea. I hope it works.
There are also lawsuits. Texas Attorney General (and Governor-elect) has already filed a lawsuit based on the significant damage to the state caused by the president’s insistence on a porous border. It may be that courts can suspend the immediate enactment of any illegal order. I’m also in favor of states taking on the role of border enforcement when the federal government fails—and then find ways to charge costs to the federal government for whatever it costs each border state. I don’t think such a system has been found yet. Texas is taking money out of its own budget to defend the international border.
While mostly we’re talking today about the illegality of using an executive order to make law, we can talk briefly actual immigration policy. The answer is relatively simple, if not easy. It could already have been done by an administration serious about a solution: close the border (funding was supplied almost a decade ago, but not used for that purpose); make it impossible for illegals to work here or to get social benefits here—thus ending any incentive to come here illegally. Any costs for medical care, incarceration or deportation of illegals should be billed to the home nation that the illegals will be deported to—costs could be deducted from foreign aid, or specific tariffs on imports from those nations until debt is paid. That’s a side issue, but the intent is to stop those nations from encouraging their citizens to come here and send dollars home.
There’s no need to wait to improve the bureaucracy; make it a smooth and efficient process to come here legally. There is nothing stopping the executive branch from doing its job better immediately. Resolving bureaucratic red tape would change the dynamics of the argument from the start. There is no need for “comprehensive immigration reform” in order to improve the process.
What the president and others mean by “comprehensive immigration reform” has been, and continues to be, naturalize illegals with the intent of creating more dependent citizens who will vote democrat. While there is reason to feel sympathy for those caught up in the useless-bureaucracy-combined-with-porous-border up until now, the solution for individual cases cannot be handled until the border is secure and the bureaucracy is fully functioning.
One indicator that the president isn’t persuading the public to his way of thinking is this Saturday Night Live skit, going viral, a parody of the Schoolhouse Rock “I’m Just a Bill.” Enjoy.


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