A Clear Violation of the Constitution: What is the remedy? Is There One?

(1) a constitutionThe one thing those who set up this country, people who actually put their lives and wealth at risk, for after all a revolt against the king was treason punishable by a neck noose on a scaffold, was to insure that no king would govern our land.

The idea that they came up with was a tripartite type government with each part having its own separate duties and responsibilities in which two could always act as a check upon another one usurping areas outside its assigned realm.

Article I, states: “All legislative Powers granted shall be vested in a Congress . . . . “ Congress consisted of two houses, a senate and house of representative.  Among the powers of Congress explicitly noted were “To regulate commerce with foreign Nations” and To establish an Uniform Rule of  Naturalization” 

Article II, states: “The executive power shall be vested in the President of the United States . . . .”  Prior to taking office the president must take the following oath: “I do solemnly swear (or affirm) that I will faithfully executed the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States”

The powers granted to the president are those of “Commander in Chief”, and with Senate oversight to “make Treaties”, “appoint Ambassadors, other public Ministers and Consuls, judges of the Supreme Court” and other officers.  He can fill vacancies in those offices, give a report to Congress on the State of the Union, “recommend to their Consideration such measures as he shall judge necessary and expedient,” recall Congress in cases of disagreement, receive Ambassadors, and  “shall take Care that the Laws be faithfully executed . . . . “

 Article III  states: “The judicial Power of the United States shall be vested in one supreme Court, and such inferior Courts as Congress may from time to time ordain and establish.” It continues: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution”  

 As you can see it is quite a simple document with only four more articles in addition to the above three. The idea is Congress makes the laws and the president makes sure they are carried out. There is no provision for the president to make laws; nor is there anything in the Constitution that suggests the president does not have to carry out the laws that have been enacted.

We have seen that President Obama rather than letting Congress decide the law, because there may be disagreement over what it should be, he has decided he has the power to enact laws himself, or in the alternative, he can ignore the laws that have been enacted. There is nothing in the Constitution that lets him do that rather every word in the Constitution shouts out that should not be done.

The actions of President Obama are being justified by pointing to actions by other presidents who may also have ignored the mandate of the Constitution and acted on what they thought was best for the nation. That may be so but it does not make them right. That Congress has sat on its hands while a president acts in defiance of the Constitution by failing to challenge the president does not mean the door has been opened for all subsequent presidents to disregard the clear mandates of the Constitution.

It was under the kings of England that the power of both giving the law and enforcing it was in the hands of one person. Many died, not only in the revolt against English rule but in subsequent wars, to keep our country operating with its checks and balances.

If Obama can enact laws or ignore laws enacted, then we are slipping back into the days when the king ruled. That you may favor what he has done is no reason to shut your eyes that what he is doing is plainly wrong and violates both his oath and the Constitution itself.

Article II also states: “The President . . . shall be removed from Office on Impeachment for, and Conviction of, . . . other high Crimes and Misdemeanors.”  Even were the violation of his oath and his seizing of legislative powers from Congress to be defined as high Crimes and Misdemeanors the circus that would come about to remove the president would tear our country apart at a time when we must be more united than error.

There is another way. Congress, or its houses, should immediately file for a hearing in the Supreme Court to stay the execution of any legislative action and for an order requiring the president to faithfully execute the laws as established. Although no provision seems to have been made in the Constitution for that type of action I assume that is because the writers of our Constitution could not conceive of the executive acting as we have seen Obama (and other presidents) who seek to ignore the clear words of the Constitution.

10 thoughts on “A Clear Violation of the Constitution: What is the remedy? Is There One?

  1. William, You never stopped for breath and your torrential prose pushed pushed pushed the through line. Great Post …. Not restrained …Not tepid … Angry and precisely truthful. And coming home to the live of the Word for the Word itself ; The only readership that ever matters in the illimitable Universe is the One you please every time you know you have written to never expecting an answer. Because the answer is in the question asked ; And the letters written. DeMaupassant, a favorite here also, agrees !!! 🙂

  2. 1. The Constitution is being interpreted out of existence by Big Money Lobbyists and by leftists, liberal democrats, socialists and “equal outcome”, “cosmic justice” unisex jihadists.
    2. Prosecutorial discretion is not a wholesale excuse to gut the law and legalize some actions lawfully criminalized by Congressional Statutes. Obama is declaring millions of criminals (illegal aliens=undocumented persons) “non criminals”. What if a President issued an executive order saying “We will stop prosecuting crack cocaine dealers and heroin dealers, but we will increase prosecution of other felons, LSD, speed and Oxycodone dealers.”? 2A. Congress should enact many of Obama’s ideas on immigration, which are realistic and compassionate. 2B. Congress should first ensure borders are secure. 2.C. Best idea: Fine every company that hires undocumented workers. No work? Illegal immigrants will leave or won’t come here in the first place. Recent recession proved that to some extent.
    3. Executive Orders are used to help enhance or carry out lawful acts intended by Statutes, to fill in gaps in existing law. Executive Orders should never be used to rewrite laws, gut laws, exclude millions from enforcement of laws enacted by Congress. Not the president’s job.
    4. Our country is out of control; I blame A. judges who think they’re social engineers and philosopher kings, B. lawyers who have no respect for laws, precedents, history or common sense (moral relativistic money grubbing and power-mongering lawyers, including many tax lawyers, Wall Street lawyers, and government lawyers), and C. politicians, left and right, who are interested primarily in power, money, going along and getting re-elected. Most politicians, judges and lawyers working in government have forgotten they are public servants. They think they’re feudal lords. Elitists!
    5. It’s easy today to twist the Constitution and Statutes and make them say whatever you want them to say. They’ve been teaching this for years at Harvard Law: It’s called Deconstructing the English Language, 101, to make it mean whatever you want it to mean. Thus a human being growing inside a woman’s womb is only “potential life” and “affirmative action” is not discriminating against white men, and “executive orders” may change laws and become new ways of making new laws, and “two men” are equal to a “man and woman” and “we had to destroy the village in order to save it.”, a Vietnam refrain.
    KEY CONCEPT: We don’t want to get money out of elections, we want to get it off Capital Hill (by limiting lobbyists’ power and by making government smaller and putting more money back in the hands of private sector workers, John Q. Public). Face it: a billionaire can spend as much as he wants and print a billion dollars worth of pamphlets–it’s free speech. Want to end corruption in politics—go after limiting the lobbyists and limiting the size of government and limiting retired government employees getting rich as contractors to government (think Generals working for Raytheon) and consultants (think Newt Gingrich) and lobbyists. Simple rule, no ex-government worker works in any business that does any work with government for ten years (not one year or two years) after he leaves government “service.” Today’s regulators become tomorrow’s lobbyist, contractors, consultants, too often.
    10. Why waste my breath? We’re all spitting in the wind as Detroit goes deeper into bankruptcy and America as we knew it crumbles under a pile of Big Money Wall Street Cronyistic Capitalistic Lobbyists and Leftist-Socialistic-Imperialistic-Napoleonic war mongering drivel which rules the airwaves, publishing houses, Media and Congress. How about we raise our voices to stop the next war? We’ve created a Monster: Imperious, imperial government and the impenetrable Imperial City (D.C.). It’s great when the President ignores the laws, and Congress is in the back pockets of the lobbyists: the Wall-Street-Steered Media-Academia-Military-Industrial-Imperialistic-Socialistic State. 11. The rich get richer and the rest of us yak, blog and write books no one ever reads, awaiting the President’s and Congress’s call for more cannon fodder.
    Just saying so; I’m going to bed to read Euripides’ Trojan Women (great play put on by BC Theater Department students and staff) and Guy De Maupassant’s Short Stories (Moonlight, last night, The Sea and other shorts tonight). Make love not war!!!! Throw all the bums out of office: Stop corporate welfare, and welfare for government employees, present and former.

  3. * See … ” Glassy eyed ” … hold on …. gonna ‘ shoot it … dead Cliche !!! … Now their eyes are covered with …. a gossamer film of disbelief ….QUAD ERAT FASCIENDUM 🙂

  4. If you meet the political cliche on the road, Kill it. … or any/all cliches. If politicians practiced this intellectual hygienic practice with the immigration debate some of their arguments … which are sound on each side … would liven’ up, and people would listen instead of just getting glassy eyed. Cliches, rhetoric and rancor is all the People get on both sides of the aisle. So nothing meaningful gets done. Too many lawyers, too much dessicated legalism, not enough heart, compassion, and common sense.

  5. Matt,

    What the President claims he is doing amounts to prosecutorial discretion, choosing to deport only those criminal and dangerous immigrants here illegally. The President is directing his officers to use their resources on the highest priority cases, the most dangerous illegal immigrants we have roaming around the streets, and leave otherwise law-abiding individuals alone. Perhaps he would have been better off to simply announce he is having DOJ and ICE focus on only hardened criminals as targets for deportation, rather than discuss all of the people he won’t be targeting immediately.

    Article II requires that the President, “take Care that the Laws be faithfully executed.” Much like SCOTUS’s rulings in Roe v. Wade (right to get an abortion is nowhere in the Constitution) the word “executive order” is nowhere in the Constitution, but it is through a long precedent have been deemed to be an inherent legal power of the presidency to issue orders to direct or further the laws in place. Executive Orders in some shape or form have been issued since the Washington Presidency. The 2 Roosevelt Presidencies alone issued almost 5,000 executive orders. The President gets his power to issue each specific order from either a provision in the Constitution itself or from legislative discretion given to the President written into the law.

    You discuss above how there is no provision in the Constitution for the President to make laws. Strangely enough, the word “Immigration” is not in the Constitution either. The courts have held that because the Congress is delegated the power to regulate “Naturalization” the opposite must be true and therefore they can regulate immigration. So really neither side can argue that they explicitly have been delegated the power to regulate immigration in the Constitution, they have to look to constitutional interpretations of those above referenced portions of the Constitution. That being said I will admit there are many court rulings that state that Congress does have this power as it is inherent to the operation of a sovereign nation.

    I have not read all of the immigration laws on the books, however, if there is some legislative discretion within the immigration laws, the President would have the authority to issue an executive order.

    That being said, the remedy of an unconstitutional executive order issued by a President is not impeachment! I don’t know why the conservatives always thump their chest about this. Executive Orders are subject to judicial review. I remember the Youngstown Steel case from law school. Truman tried to place all steel mills under govt. control and the Court overturned it, saying he was attempting to create federal law through executive order.

    There have been some bad executive orders, (Roosevelt’s Japanese internment camps, Bushes orders on presidential papers). But no one calls Dwight Eisenhower a “king” for ordering the desegregation of public schools or Abe Lincoln for issuing his Emancipation Proclamation (a little different than an executive order, but still is legally binding). Obama is acting much in the way of past presidents in standing up for an otherwise silent minority that has been wronged by those in power.

    There is a long precedent of executive orders dating back to the founding of our country. What is really an executive overreach is our ability to attack other countries with impunity without Congress declaring war, and the ability for our government to secretly record and store all of our data, or prosecute those who reveal that the government is infringing upon our rights.

    Sorry for the length of this comment, I just feel that it is not as cut and dry as you make it out be. Perhaps my lack of knowledge concerning the specific laws Obama is issuing these executive orders under throws my argument completely out the window, I need to commit to more research on my part.

  6. You are right the President should faithfully execute the laws. Congress can withhold funds if he doesn’t. If the Administration spends money not appropriated the Congress can hold anyone who does in contempt. In a new administration prosecutions could commence. Would the bureaucrats take that chance? 2. How many hundreds of billions have we spent on foreign aid in addition to the war money? Doesn’t charity begin at home? The keystone pipeline should be built. But it should come from Canada to North Dakota and then over to Duluth Minn. Build a refinery in Detroit. Tankers and barges could transport the ND and Tar Sands oil to the Motown. Take 2 billion out of foreign aid and give it to an energy company to erect the facility in Michigan. Many jobs could be created. Energy could be the future not autos. The polar vortex may make this a necessity. Texas and Louisiana refineries will still have plenty of work with Gulf, Mexican, Venezuelan and Nigerian oil. 3. Milton Friedman said he would support open borders if we eliminated welfare. Many good ideas out there but lets implement them in a lawful, Constitutional manner. Madison philosophy was Natural Law, Limited Government and Religious Freedom. Good principles to stick by.

    1. NC:

      Congress withholding of funds results in shutdowns which cause anger toward the party in Congress in control (usually Republican) and backfires on Congress. We read stories how our troops on the front lines have no food to eat, our military jets no fuel, and of the many government workers who can no longer heat their homes. Contempt doesn’t work since the DOJ has to bring the action and it refuses.
      2. We can’t walk away from paying people to be our friends (foreign aid) since that seems to be the only way we can get them to listen to us. There are many good ideas like you expressed in diverting assets to places like Detroit the home of the lions and tigers to bring work into those areas. That is where we should be focusing on in making America stronger. The polar vortex is not coming back this year or the next, ask the people in Buffalo.
      3. Milton Berle said let them come and we can feed them as long as they come with a song in their heart and a good sense of humor. Milton High School students have expressed limited support for immigration reform. Milton Bradley was not related to Brendan Bradley.
      You’re right again on there being many good ideas and Obama has some. We should do something about bringing out of the closet the millions of immigrants but do it lawfully.

  7. I like Mike Savage’s Immigration plan. Let everyone in, subject to medical examination, and they get no benefits for ten years. Nada. They work. That might satisfy Liberals and Conservatives a little bit. It worked when the US had Ellis Island and I see no reason why not today. The country is large enough to absorb many millions more and whether appreciated or not, immigrants do contribute to the country at large and to the community.

    The government might stop spending trillions in stupid unwinnable wars in an Islamic civil war and use the money to hire immigrants to rebuild places like Detroit and the Rust Belt.

    1. Henry:

      Not a bad idea but it would probably not work since there would be a multitude of litigation demanding benefits such as schooling and medical services. The Ellis Island crowd couldn’t look around and see other freeloaders, they were thankful to be here, and it was simple in that time, sink or swim. Now it seems there are many programs out there encouraging people to get on the dole where they are given just enough to keep them happy. I agree we can absorb the millions of immigrants since they are already here.

      When we let in the DP’s from Europe they could come only if they had a sponsor who would give them a job. I’m sure over 90% of the immigrants do not want to come here to sit on their butts but to work to try to get ahead like every other immigrant group. I agree the the trillions we spend in fighting people who won’t fight for themselves must be stopped and we should rebuild much of America with that money.

      There are good ideas for addressing the problem. Maybe Obama’s illegal act will finally make people address the isswue.

  8. Republican Money silently complicit in wanting Cheap Labor = No good remedy in sight. Bad situation .

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