This week, I am grateful I am not a civics teacher. The entire legal and constitutional framework under which we believe we live seemed to have been turned upside-down. To start with, as former U.S. Appeals Judge Michael McConnell argued so well, Obama’s suspension of the employer mandate of ObamaCare conflicts with his obligations under Article II, Sec 3 to “take care that the laws be faithfully executed.”
The Justice Department’s Office of Legal Counsel, which advises the president on legal and constitutional issues, has repeatedly opined that the president may decline to enforce laws he believes are unconstitutional. But these opinions have always insisted that the president has no authority, as one such memo put it in 1990, to “refuse to enforce a statute he opposes for policy reasons.”
Attorneys general under Presidents Carter, Reagan, both Bushes and Clinton all agreed on this point. With the exception of Richard Nixon, whose refusals to spend money appropriated by Congress were struck down by the courts, no prior president has claimed the power to negate a law that is concededly constitutional.
In 1998, the Supreme Court struck down a congressional grant of line-item veto authority to the president to cancel spending items in appropriations. The reason? The only constitutional power the president has to suspend or repeal statutes is to veto a bill or propose new legislation. Writing for the court in Clinton v. City of New York, Justice John Paul Stevens noted: “There is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes.”
To be sure, in less significant ways, Obama has also suspended the operation of valid laws. As McConnell notes, Obama is ignoring immigration law by suspending deportation proceedings “against some 800,000 illegal immigrants.”
McConnell warns Democrats that this unfortunate precedent may haunt them when a Republican takes over the White house and follows it. Worse, it seems, and he also notes, “[w]hy bother debating the details of a compromise if future presidents will feel free to disregard those parts of the statute they don’t like?”
Court resolution of this overreaching and constitutional violation is not certain, because it’s unclear whether any citizen would meet the threshold standing issue to bring suit. It’s hard to see what “personal stake” sufficient to permit such a suit private citizens would have.
This is particularly unfortunate since nothing gives the executive more power to “control the legislation of congress, and paralyze the administration of justice” than the executive’s refusal to enforce the law (Kendall v. United States ).
The House Ways and Means Committee is exploring the legality of this move, but frankly, unless the House is willing to initiate censure or impeachment proceedings, I do not see that there is much more than public exposure they can hope to achieve.
In the states, Republicans, independents, and patriots of every stripe in every legislature should offer up and fight to pass censure resolutions against this power-grab.
With the news this week that Attorney General Holder’s Department of Justice had used tax-paid employees of his department to foment the demonstrations which forced the prosecution of George Zimmerman, it is apparent that something is very seriously wrong.
John Fund offers up more on the effect of Obama’s lawlessness should more concrete examples be needed to persuade legislatures of the need for passage of censure resolutions:
I wondered back in 2008 how the federal government’s focus would change with a left-wing “community organizer” installed as president. We now have a partial answer. It appears that some of the tactics and approaches ACORN used have been moved into the Justice Department and other federal agencies. In the old days, when individual appropriations bills for federal agencies were still passed by Congress, it was possible to defund groups like ACORN. But now, with congressional gridlock ensuring that federal agencies are financed by dubious annual spending resolutions that simply continue existing program funding, any effective oversight by Congress is a dead letter. The question now isn’t really how many other left-wing “community organizing” projects like the one at Justice are being subsidized by the Obama administration. The real issue is whether the entire Obama administration has basically become an enabler and cheerleader for every Saul Alinsky tactic its radical appointees want to embrace – from the Department of Housing and Urban Development’s bullying local officials over public-housing construction demands to the Environmental Protection Agency’s colluding with environmentalist groups to lose lawsuits the groups file against the EPA in court.
I had thought until this week that the American Dreyfus trial — the martyrdom of George Zimmerman — was an unfortunate local miscarriage of justice. To watch the trial unfold was to be appalled at the outrageous prosecution. Talk Left’s Jeralyn E. Merritt put it well:
Whether George Zimmerman is acquitted or convicted, and I am not making any predictions before hearing closing arguments and reading the jury instructions, the legacy of this case will be that the media never gets it right, and worse, that a group of lawyers, with the aid of a public relations team, who had a financial stake in the outcome of pending and anticipated civil litigation, were allowed to commandeer control of Florida’s criminal justice system, in pursuit of a divisive, personal agenda.
Their transformation of a tragic but spontaneous shooting into the crime of the century, and their relentless demonization of the person they deemed responsible, not for a tragic killing, but for “cold-blooded murder,” has called into question the political motives and ethics of the officials serving in the Executive branch of Florida’s government, ruined the career of other public officials, turned the lives of the Zimmerman family, who are as innocent as their grieving clients, into a nightmare, and along the way, set back any chance of a rational discussion of the very cause they were promoting, probably for years.
The problems of racial disparity and arbitrary enforcement of our criminal laws are real, systemic and need to be addressed. Criminal defense lawyers see it and fight to correct it every day. From charging decisions to plea offers to sentences, the system is not fair and everybody knows it.
But this case has never been representative of those problems. And perhaps most unfortunate of all, as a result of the false narrative created by the lawyers for grieving parents who tragically lost their son — a narrative perpetuated by a complicit and ratings-hungry media — any attempt at meaningful reform is likely to fall on deaf ears for years to come.
The disclosure of this unbelievable misuse of government power and resources to indict Zimmerman and remove those officials who had correctly refused to do so underscores Thomas Sowell’s admonition about racial leaders :
Groups that rose from poverty to prosperity seldom did so by having racial or ethnic leaders. While most Americans can easily name a number of black leaders, current or past, how many can name Asian American ethnic leaders or Jewish ethnic leaders?
The time is long overdue to stop looking for progress through racial or ethnic leaders. Such leaders have too many incentives to promote polarizing attitudes and actions that are counterproductive for minorities and disastrous for the country.
Certainly Holder comes within the class of figures Sowell warns of.
Michael Ledeen details the polarizing role Holder has played in race relations from the moment of his nomination to his post.
Throughout your tenure, you’ve acted as if one of your primary tasks were the protection of blacks against criticism and particularly against legal action, regardless of the facts in the cases. I found the whitewash of the New Black Panthers‘ actions at a polling place in Philly during the 2008 elections particularly egregious, as did several Justice Department officials in the Civil Rights Division. I’d be inclined to overlook it – a single event, after all – save for two things. First, the behavior of your underlings, and second, the Panthers just showed up again in Florida in a “race case.”
One of your cohorts at Justice seem to have dissembled about the whitewash. Assistant Attorney General Thomas Perez swore that there was no political element involved in Justice’s decision, but a federal district judge found otherwise: political appointees within DOJ were conferring about the status and resolution of the New Black Panther Party case in the days preceding the DOJ’s dismissal of claims in that case, which would appear to contradict Assistant Attorney General Perez’s testimony that political leadership was not involved in that decision.
So your political cohorts were involved in the whitewash, and denied it in sworn testimony (and Thomas Perez, who provided the false denial, is now up for secretary of Labor). It’s not the only case that suggests active sympathy for the Panthers.
As we have recently learned, Justice quietly helped organize the Florida demonstrations that clearly caused local legal authorities to reverse their original judgment, and bring charges in the now (and improperly) racially defined Zimmerman case. Those demonstrations included the New Black Panthers.
No one could possibly characterize your race-driven proclivities better than you did, when you said, “I am the black U.S. attorney…there’s a common cause that bonds the black U.S. attorney with the black criminal…”
This is not what we need from the nation’s top legal officer. It may well be a candid expression of your deepest passions, but it’s wrong for the attorney general, or any legal official of the American government. We need an indisputably even-handed, fair-minded and color-blind AG. You’re not that man. You’re pushing an agenda that most Americans don’t like, based on a racially driven view of American history and society that is false, demeaning to most of us, and a threat – whether deliberate or unanticipated – to our continued progress. We don’t need any more of this.
Article II, Section 4 of the Constitution provides for impeachment of the president, vice president, and officers like the attorney general for “treason, bribery, high crimes and misdemeanors.” That certainly seems sufficient to cover an attorney general who regularly misuses his office to polarize race relations; who allowed countless weapons to be transferred across our southern border to thugs, who probably counseled the president that he could refuse to enforce constitutional laws.
Twice in our country’s short history, high officials resigned when faced with the prospect of impeachment hearings — Secretary of the Treasury Andrew Mellon and Supreme Court Justice Abe Fortas. Once, a president, Richard Nixon, resigned once the articles of impeachment were reported out of the House Judiciary Committee.
It’s time for Democratic leaders to encourage Holder’s departure. If they lack the will to do so, the House Judiciary should initiate impeachment of Holder.