Is the President digging himself a hole that even his own supporters will refuse to dig him out of? Consider Prof. Jonathan Turley, a liberal law professor that has been a supporter, in his testimony before the Judiciary committee.
Chairman Goodlatte, Ranking Member Conyers, and members of the Judiciary
Committee, my name is Jonathan Turley and I am a law professor at George Washington
University where I hold the J.B. and Maurice C. Shapiro Chair of Public Interest Law. It
is an honor to appear before you today to discuss the constitutional concerns raised by
recent nonenforcement polices and the President’s duty to faithfully execute the law of
the United States.
The issue before the Committee is clearly a difficult one.
It is often difficult to
separate the merits of the underlying policies from the means used to achieve them. It so
happens that I agree with many of the goals of the Administration in the various areas
where the President has circumvented Congress. However, in the Madisonian system, it
is often more important how you do things than what you do. We have long benefited
from a system designed to channel and transform factional interests in the political
system. When any branch encroaches upon the authority of another, it not only
introduces instability into the system but leaves political issues raw and unresolved.
However, to paraphrase one of Benjamin Franklin’s favorite sayings, the Constitution
helps those branches that help themselves. Each branch is given the tools to defend itself
and the Framers assumed that they would have the ambition and institutional self-interest
to use them. That assumption is now being put to the test as
many members remain silent
in the face of open executive encroachment by the Executive Branch.
While
I believe that the White House has clearly “exceeded its brief” in these
areas, this question of presidential nonenforcement has arisen periodically in our history.
In the current controversy, the White House has suggested an array of arguments, citing
the interpretation of statutory text, agency discretion, or other rationales to mask what is
clearly a circumvention of Congress. It also appears to be relying on the expectation that
no one will be able to secure standing to challenge such decisions in court.
Finally, there is no question that the President as Chief Executive is allowed to set priorities of the
administration and to determine the best way to enforce the law. People of good faith can
clearly disagree on where the line is drawn over the failure to fully enforce federal laws.
There is ample room given to a president in setting priorities in the enforcement of laws.
A president is not required to enforce all laws equally or dedicate the same resources to
every federal program.
Even with this ample allowance, however, I believe that President Barack Obama has crossed the constitutional line between discretionary enforcement and defiance of federal law.
Congress is given the defining function of creating and amending federal law. This is more than a turf fight between politicians. The division of governmental powers is designed to protect liberty by preventing the abusive concentration of power. All citizens –Democratic or Republican or Independent – should consider the inherent danger presented by a President who can unilaterally
suspend laws as a matter of presidential license.
In recent years, I have testified and written about the shift of power within our
tripartite government toward a more Imperial Presidential model. Indeed, I last testified
before this Committee on the assertion of President Obama that he could use the recess
appointment power to circumvent the Senate during a brief intrasession recess.
While I viewed those appointments to be facially unconstitutional under the language of Article I
and II (a view later shared by two federal circuits), I was equally concerned about the
overall expansion of unchecked presidential authority and the relative decline of
legislative power in the modern American system. The recent nonenforcement policies
add a particularly menacing element to this pattern. They effectively reduce the
legislative process to a series of options for presidential selection ranging from negation
to full enforcement. The Framers warned us of such a system and we accept it – either by
acclaim or acquiescence – at our peril.
The current claims of executive power will outlast this president and members
must consider the implications of the precedent that they are now creating through
inaction and silence. What if a future president decided that he or she did not like some
environmental laws or anti-discrimination laws? Indeed, as discussed below, the
nonenforcement policy is rarely analyzed to its natural conclusion, which leads to a
fundamental shift in constitutional principles going back to Marbury v. Madison.
The separation of powers is the very foundation for our system; the original covenant reached
by the Founding Generation and passed on to successive generations. It is that system
that produces laws that can be truly said to represent the wishes of the majority of
Americans. It is also the very thing that gives a president the authority to govern in the
name of all Americans. Despite the fact that I once voted for President Obama, personal
admiration is no substitute for the constitutional principles at stake in this controversy.
When a president claims the inherent power of both legislation and enforcement, he becomes a virtual government unto himself. He is not simply posing a danger to the constitutional system; he becomes the very danger that the Constitution was designed to avoid.
http://jonathanturley.files.wordpress.com/2013/12/testimonyturley-faithful-house-final.pdf
Very strong indeed....Remember this is a supporter of Obama saying these things....
Is Obama overreaching? And will the people put a stop to it?
"Fundamental Transformation?"
