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Activists urge Obama to go rogue, sidestep Congress

j-mac

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President Obama’s repeated use of presidential powers is causing a tough problem — his own supporters now expect him to use it to achieve everything they want.From immigration to the minimum wage, congressional Democrats and liberal activists this week urged Mr. Obama to declare an end run around Capitol Hill, assert executive authority and make as much progress as he can on the expansive agenda he laid out for his second term.


Read more: Activists urge Obama to go rogue, sidestep Congress - Washington Times

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?"
 
Liberal activists are stupid. Even Obama's lawlessness is only a passive power. He chooses what laws not to enforce. With the minimum wage he would have to exert active power by enforcing a law that doesn't actually exist. At that point an impeachment is manditory.
 
Liberal activists are stupid. Even Obama's lawlessness is only a passive power. He chooses what laws not to enforce. With the minimum wage he would have to exert active power by enforcing a law that doesn't actually exist. At that point an impeachment is manditory.

He may be playing this exquisitely....He has the Senate for the time being, and he knows that Reid will do his bidding, and not convict. So, although the House can bring the proceedings, they will hesitate due to the image they got over Clinton. It is a dangerous game he is playing. But he has the repubs almost scared to stand up...It's up to us, if they don't have the balls to go up against this tyranny.
 
Liberal activists are stupid. Even Obama's lawlessness is only a passive power. He chooses what laws not to enforce. With the minimum wage he would have to exert active power by enforcing a law that doesn't actually exist. At that point an impeachment is manditory.

I disagree. What Obama did (and will continue to do) with PPACA, is mainly said to be changing dates and numbers in a current law. Adding $8/hour to the minimum wage needs no federal spending and it is a "modification" or "rule change" to an existing federal law, just like Obama is doing with PPACA.
 
The obamites have tasted the success of a dictator and now expect the dictator to work to their extreme favor.
 
I disagree. What Obama did (and will continue to do) with PPACA, is mainly said to be changing dates and numbers in a current law. Adding $8/hour to the minimum wage needs no federal spending and it is a "modification" or "rule change" to an existing federal law, just like Obama is doing with PPACA.

But that is a matter of non-enforcement. That is a lot easier than trying to rewrite laws that would require enforcement.
 
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?"

GREAT POST!!!

The President has exceeded his authority, and needs to be taken to task for it.

Not because he's "Obama" or because he's a Democrat, but because he is setting a precedent for future Presidents that can lead to unabridged authoritarian rule by the Executive Branch.

The Congress needs to take back their power, and exert that power themselves.
 
GREAT POST!!!

The President has exceeded his authority, and needs to be taken to task for it.

Not because he's "Obama" or because he's a Democrat, but because he is setting a precedent for future Presidents that can lead to unabridged authoritarian rule by the Executive Branch.

The Congress needs to take back their power, and exert that power themselves.

I couldn't agree more, however, in Boehner, and some throughout the House, and Senate, not a chance that will happen.
 
I couldn't agree more, however, in Boehner, and some throughout the House, and Senate, not a chance that will happen.

Not sure about Boehner. I feel he is just as pissed about this as you and I are. The problem is, what is the remedy.

There are only two remedies at this time; 1) taking the Executive to court in the DC Circuit (which the Senate just packed with Democrat appointees), and of course... 2) impeachment.

Neither are good options at this time.

If the Executive Branch takes further actions, like raising the minimum wage or giving amnesty to illegal immigrants without Congressional approval, THEN the Congress can go to the court and if they won't issue a stay, then they can use the nuclear option of impeachment (although there's no way that will succeed as long as the Senate is in full Democrat control).
 
But that is a matter of non-enforcement. That is a lot easier than trying to rewrite laws that would require enforcement.

If you think that PPACA is not being enforced then you haven't been paying attention. ;)
 
If you think that PPACA is not being enforced then you haven't been paying attention. ;)

Well it is, but the changes Obama is making to it are all towards non-enforcement.
 
Well it is, but the changes Obama is making to it are all towards non-enforcement.

I disagree. Obama is trying to hide the fact, via delay and temporary bribes to insurance providers, that PPACA is a very bad deal for very many people. If PPACA was merely Medicaid expansion paid for by added taxation on the rich (like the UHC dream of many) that would be no big deal (yet unlikely to have passed congress). What Obama is doing is delaying the "bad parts" of PPACA until after the 2014 elections hoping that we will forget that they are just around the corner. According to Obama, PPACA is a good deal, the "law of the land" (but subject to endless tweaking) and we must simply learn to accept it
 
Not sure about Boehner. I feel he is just as pissed about this as you and I are. The problem is, what is the remedy.

There are only two remedies at this time; 1) taking the Executive to court in the DC Circuit (which the Senate just packed with Democrat appointees), and of course... 2) impeachment.

Neither are good options at this time.

If the Executive Branch takes further actions, like raising the minimum wage or giving amnesty to illegal immigrants without Congressional approval, THEN the Congress can go to the court and if they won't issue a stay, then they can use the nuclear option of impeachment (although there's no way that will succeed as long as the Senate is in full Democrat control).

There is a 3rd option. One that would have to run parallel to using the courts...And that IMHO, is for members of the House and Senate that don't like what is happening, to throw their weight behind an Article 5 convention. Get it out there in the public.
 
There is a 3rd option. One that would have to run parallel to using the courts...And that IMHO, is for members of the House and Senate that don't like what is happening, to throw their weight behind an Article 5 convention. Get it out there in the public.

Please... NO....That would be the most chaotic crazy circus that ever existed. If we open up the Constitution for a total total rewrite... holy crap... I can't even imagine the mass hysteria that would ensue.
 
< snip >
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.

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?"
That final sentence in his testimony sums up perfectly what the danger here is. It's "transformation" to a fundamentally totalitarian state. I simply don't know how it's possible to gloss this over or diminish the danger we're facing as a nation right now. That's NOT hyperbole. This is real; and it's happening before our very eyes.
 
I disagree. What Obama did (and will continue to do) with PPACA, is mainly said to be changing dates and numbers in a current law. Adding $8/hour to the minimum wage needs no federal spending and it is a "modification" or "rule change" to an existing federal law, just like Obama is doing with PPACA.

There is no presidential authority to modify or rule change anything except his practices and policies for managing his one presidency.
 
That final sentence in his testimony sums up perfectly what the danger here is. It's "transformation" to a fundamentally totalitarian state. I simply don't know how it's possible to gloss this over or diminish the danger we're facing as a nation right now. That's NOT hyperbole. This is real; and it's happening before our very eyes.

What the Constitution lacks is much power to stop a president who decides he instead wants to be dictator. Violating the Constitution, unfortunately, is not a stated impeachable offense, nor is violating the oath of office. The flaw, it would seem, is a belief that only honorable people who belief in Constitutional government and rule of law would ever become president.

This is not the first time this problem has arisen. THE most extreme was President Jackson totally defining the Supreme Court ruling the Cherokee owned their land, for which Jackson laughed at the Supreme Court openly, and militarily removed the Cherokee giving their land to white people and killed hundreds of Cherokee on a death march similar to how the Japanese marched prisoners on death marches - for the Cherokee most killed by Jackson were little children and old people. The Supreme Court was powerless. If it had the power to remove a president it would not be.

The Supreme Court should have been given the power to remove a president for such reasons, but wasn't. Since the Supreme Court has power in all other regards, even approve executions of citizens, it should have the power to remove a president who fundamentally violates the Constitution and Bill of Rights, or for the other reasons stated for removal of a president.

Such a "trial" of a president should be by the highest court - just as ALL trials are by courts - and not by politicians who are not required to have any legal expertise whatsoever and can be politically influenced. Supreme Court members can not be political pressured no have reason to fear political retaliation by a president.
 
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There is no presidential authority to modify or rule change anything except his practices and policies for managing his one presidency.

What? Are you saying that because PPACA is "new", or signed by Obama that, Obama can mess with its dates/numbers yet cannot mess with the minimum wage number? Or do you mean that Obama can mess with anything/everything but the next president can undo or modify the law as they see fit as well.
 
Please... NO....That would be the most chaotic crazy circus that ever existed. If we open up the Constitution for a total total rewrite... holy crap... I can't even imagine the mass hysteria that would ensue.

No one said anything about a "total total rewrite".... But this option does exist in our constitution, I believe for this very purpose.
 
What the Constitution lacks is much power to stop a president who decides he instead wants to be dictator.

Simply not true....

"Article V

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate."

Article V, U.S. Constitution
 
GREAT POST!!!

The President has exceeded his authority, and needs to be taken to task for it.

Not because he's "Obama" or because he's a Democrat, but because he is setting a precedent for future Presidents that can lead to unabridged authoritarian rule by the Executive Branch.

The Congress needs to take back their power, and exert that power themselves.

well said; there is a problem that Congress cannot use lawsuit to stop what is becoming a "Unitary" POTUS -
Only SCOTUS can, and is reluctent to get into seperation of powers issues

The Unitary Executive Theory:

Imperial Presidency 101 - The Unitary Executive Theory, Separation of Powers, and Signing Statements

Under the Bush administration's interpretation of the unitary executive theory, the President has authority over members of the executive branch, functioning as a CEO or Commander-in-Chief, and his or her power is restricted only by the U.S. Constitution as interpreted by the Judiciary.
Congress can hold the President accountable only by censure, impeachment, or constitutional amendment; legislation restricting the executive branch has no power
Congress must assert it's powers, it cannot; being hopelessly hyperpartisan gridlocked - to even claim it's owmn power
 
No one said anything about a "total total rewrite".... But this option does exist in our constitution, I believe for this very purpose.

The problem is that once a Constitutional Convention is opened, there are no limits on what can be brought to the floor for changes, like the 2nd Amendment. The regular Amendment process would be the way to go if we change anything in the Constitution, such as was done in the 22nd Amendment to limit Presidents to two terms. An Amendment could be adopted that better defined the limitations of the Executive Branch and preventing that branch of government from acting as if they had legislative powers.
 
well said; there is a problem that Congress cannot use lawsuit to stop what is becoming a "Unitary" POTUS -
Only SCOTUS can, and is reluctent to get into seperation of powers issues

The Unitary Executive Theory:

Imperial Presidency 101 - The Unitary Executive Theory, Separation of Powers, and Signing Statements

Congress must assert it's powers, it cannot; being hopelessly hyperpartisan gridlocked - to even claim it's owmn power

And your quote about the Bush signing statements is a another good example of the overreach of the Executive Branch.

We have to get this under control because regardless of party the Presidency is becoming, and in future will empirically become, an autocracy if not put in check.

The Constitution is set up that if there can be said to be one branch that is stronger than the others, it is the Legislative Branch.

This has been eroding since FDR (although truly it started with Lincoln suspending Habeas Corpus) and if the Legislative Branch, THE HOUSE OF THE PEOPLE, doesn't step up, they might as well sit down and go home.
 
And your quote about the Bush signing statements is a another good example of the overreach of the Executive Branch.

We have to get this under control because regardless of party the Presidency is becoming, and in future will empirically become, an autocracy if not put in check.

The Constitution is set up that if there can be said to be one branch that is stronger than the others, it is the Legislative Branch.

This has been eroding since FDR (although truly it started with Lincoln suspending Habeas Corpus) and if the Legislative Branch, THE HOUSE OF THE PEOPLE, doesn't step up, they might as well sit down and go home.
couldn't agree more, ,and yes the Legislative has the most innate power to make law,ratify executive treatys/appointments, etc.

"The Congress abdicates, the president aggregates" is one of the best quotes I've heard.
 
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