Tuesday, April 7, 2015

Obama the lawless President

“I wish Obama would obey the Constitution.”

A good friend who is intelligent, level headed and fair in his dealings made that comment over breakfast this morning.  It is a very prevalent thought and it highlights just how little the great mass of U. S. citizens knows about their form of government.

We are a representative democracy guided by the outline of the Constitution and under those constraints President Obama is well within the parameters of his office.  There has never been a government like this in the history of the world and after two and a half centuries we are still trying to figure it out and make it continue to work.

Under Article II, Section 2 of the Constitution, the President, as the chief executive, “. . .shall take care that the laws be faithfully executed. . .”  Another way of saying that is he shall “prosecute” the laws.  That means he must do what he feels must be done to make the laws work.  Congress is notoriously vague when it writes laws and when they don’t do it right there are two avenues to correct a law and make it work.  The first is for the executive to interpret the law and issue orders on how it is to be implemented and the second is for the Supreme Court to order how the law is to be implemented.

The courts have called the executive’s prerogatives “prosecutorial discretion” and absent laws or court rulings that specifically prohibit an action the President has unlimited prosecutorial discretion.  President Obama has used Executive Orders to explain his decisions.  Yes, in the past Barack Obama has said that some of what he has done, he thought, would be in violation of the Constitution.  After all, he is a Constitutional scholar.  Theoretically that is correct but in reality, there is no law or court opinion prohibiting what he has done, lacking action by the Congress, so he has not violated the Constitution even though he once thought that it might, and in fact still might feel that way.

If, for instance, President Obama has stretched beyond his prosecutorial discretion in stopping some actions on immigrants, there are two ways to turn it around.  One is for someone—with standing--to bring suit in a federal court which may eventually end up being decided by the Supreme Court.  If the Supreme Court declines to take up the case it is declaring that the President’s actions fall within the Constitution.  If they take up the case they will decide either way.

A much easier and quicker solution is for the Congress of the United States to pass a law on the subject.  The law may well be vetoed by the President but the veto can be overridden by a two thirds vote and it becomes law without the President’s signature.  That law would have precedence over prosecutorial discretion and the Executive Orders become null and void.  The only thing that could change it is a Supreme Court decision.  President Obama cannot be criminally charged for those excesses but a future President who did the same would then be in violation of the Constitution.  Prosecutorial discretion does not apply to settled law.

Our Constitution of the United States of America is a living, breathing document.  It can change from day to day but so far everyone in our current government is operating well within the parameters of their offices.  President Obama is out on a Constitutional limb because Congress will not act.  He may well be proven wrong but for now he is simply doing his job.  It is up to Congress to do its job and if it doesn’t like the President’s perfectly legal Executive Orders, change them with a law that defines the parameters.

My advice to everyone calling President Obama a lawless executive is to shut up until Congress does its job.  But lately it has been a lot easier for Congress to lie and stir up discontent than it is for them to actually do the job we elected them to do—govern.

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