In 1952, the Supreme Court decided the case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), also known as “The Steel Seizure Case.” At the height of the Korean War, President Truman was faced with a strike of the nation’s major steel producers by the U.S. Steel Workers of America. Instead of invoking the emergency provisions of the Taft-Hartley Act (which had been passed by Congress over Truman’s veto) to prevent the union from striking or using the Defense Production Act (which would have legally allowed seizure of the plants), Truman passed over Congress and issued an executive order seizing their production facilities and kept management in place. A federal judge issued an injunction barring the government from holding the steel plants and the case was appealed to the U.S. Supreme Court, which declared that the President had no power to act, except in those cases expressly or implicitly authorized by the Constitution or an Act of Congress.
It was Justice Robert Jackson's concurring opinion, however, which the Youngstown decision will be remembered for. Justice Jackson noted that the President's authority to issue executive orders (EO) and proclamations can be broken down into three categories:
(1) Those issued pursuant to an express or implied authorization of Congress. Here the president’s authority is at its maximum. The EO is invalid only if the federal government as a whole lacks authority to do what the EO does.
(2) Those based upon undefined powers that lay in a "zone of twilight" where the President acts solely on the basis of his independent power and Congress has not spoken. Congressional inactivity or indifference may sometimes enable measures on independent presidential responsibility. In this area, the validity of the EO depends on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
(3) Those incompatible with the expressed or implied will of Congress, and thus rely solely upon his constitutional authority. Here presidential EO power is at its lowest, and must be scrutinized with caution before being taken, because the EO is only constitutional if a court can disable the Congress from acting on the subject.
With regard to this third type of EO, Jackson warns that what is at stake is the American system of checks and balances – the very equilibrium established by our constitutional system. Here we must recall that our current president has shown a heightened ambition to “get around” the U.S. Constitution he swore to uphold and protect. In “The Audacity of Hope,” he wrote that he could not reject “the school of thought that sees the Founding Fathers only as hypocrites and the Constitution only as a betrayal of the grand ideals set forth by the Declaration of Independence.” Later, in a 2001 interview with Chicago public radio station WBEZ, State Senator Obama stated:
The Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.
Thirty years later the Supreme Court reviewed President Carter’s EO seizing of Iranian assets in response to the Iran Hostage Crisis, as well as President Reagan’s ratification of that EO. In Dames & Moore v. Regan, 453 U.S. 657 (1981), the presidents’ actions were held constitutional because they were done specifically pursuant to congressional authorization and, therefore, because they involved national security and Congress had acquiesced in the president’s actions, were issued pursuant to the strongest of presidential authority.
President Obama’s five executive orders above are clearly unconstitutional under the guidelines set forth by the U.S. Supreme Court because the five executive orders are not only merely “incompatible” with the expressed or implied will of Congress, they directly contravene, change, or alter acts of Congress in violation of the separation of powers and the U.S. Constitution.
Congress set forth specific deadlines and enforcement laws with regard to the implementation of Obamacare and the president has changed them on his own authority because it was politically advantageous to do so. Congress enacted the Defense of Marriage Act and Obama’s executive order to stop defending it is directly contrary to the will and intent of Congress. He has declared certain laws “unconstitutional” – something that not even the most radical liberals have suggested is within the purview of the executive branch. He has also halted the enforcement of existing immigration policy enacted by Congress pursuant to their congressional authority on his own initiative because he simply didn’t like the law. Lastly, he exempted a number of states from the No Child Left Behind Law which was duly passed by Congress....just the tip of the iceberg.
On Monday, February 10, 2014, the Obama Administration announced yet another unconstitutional edict. This time the regime has reversed Congress once again, pronouncing that it will violate the Affordable Care Act's employer mandate for the second consecutive year - in direct violation of the law Congress voted on and passed. Obama's Treasury Department said it will delay the mandate's penalty another year for small businesses with 50 to 99 employees and will also adjust some of the requirements for larger employers. Under the Executive Branch's new legislation - passed without a single vote in Congress, businesses with 100 or more employees must offer coverage to at least 70% of full-time workers in 2015 and 95% in 2016. Congess didn't debate and pass this law and Obamacare provided quite differently. Our president just willed the new laws into existence. These are clearly unconstitutional proclamations committed for purely political reasons.
The uninformed supporters of our president blindly defend this usurpation of executive power by noting that “all presidents issue executive orders”, but there has never been a president in history who has so brazenly sidestepped Congress’ powers and usurped the role of lawmaker. It is now also clear that the nation’s attorney general is of absolutely no help in giving our president guidance on this subject. In responding to questions at a Senate hearing recently, Eric Holder was asked to explain to Congress why he thought Barack Obama was within his constitutional limits when he reversed Congress by issuing an executive order to delay Obamacare’s employer mandate. After Senator Mike Lee (R-Utah) read to him the above Supreme Court’s rulings on the matter, Holder replied:
I’ll be honest with you, I have not seen — I don’t remember looking at or having seen the analysis in some time, so I’m not sure where along the spectrum that would come.”
Armed with his radical pen, President Obama has fulfilled the words of humorist Will Rogers, who observed that Congress doesn't make laws anymore, "they just wave at the bills as they go by." It is no wonder that many members of Congress are truly wondering if they really are the nation’s lawmakers any more.