Author Topic: Stopping a lawless president  (Read 367 times)

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Offline rangerrebew

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Stopping a lawless president
« on: June 23, 2014, 02:50:25 PM »
Stopping a lawless president   


By: George Will   
6/23/2014 09:17 AM


What philosopher Harvey Mansfield calls “taming the prince” — making executive power compatible with democracy’s abhorrence of arbitrary power — has been a perennial problem of modern politics. It is now more urgent in the United States than at any time since the Founders, having rebelled against George III’s unfettered exercise of “royal prerogative,” stipulated that presidents “shall take care that the laws be faithfully executed.”

Serious as are the policy disagreements roiling Washington, none is as important as the structural distortion threatening constitutional equilibrium. Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity and qualitatively different.




Regarding immigration, health care, welfare, education, drug policy and more, Obama has suspended, waived and rewritten laws, including theAffordable Care Act. It required the employer mandate to begin this year. But Obama wrote a new law, giving to companies of a certain size a delay until 2016 and stipulating that other employers must certify they will not drop employees to avoid the mandate. Doing so would trigger criminal perjury charges; so he created a new crime, that of adopting a business practice he opposes.

Presidents must exercise some discretion in interpreting laws, must havesome latitude in allocating finite resources to the enforcement of laws and must have some freedom to act in the absence of law. Obama, however, has perpetrated more than 40 suspensions of laws. Were presidents the sole judges of the limits of their latitude, they would effectively have plenary power to vitiate the separation of powers, the Founders’ bulwark against despotism.

Congress cannot reverse egregious executive aggressions such as Obama’s without robust judicial assistance. It is, however, difficult to satisfy the criteria that the Constitution and case law require for Congress to establish “standing” to seek judicial redress for executive usurpations injurious to the legislative institution .

Courts, understandably fearful of being inundated by lawsuits from small factions of disgruntled legislators, have been wary of granting legislative standing. However, David Rivkin, a Washington lawyer, and Elizabeth Price Foley of Florida International University have studied the case law and believe that standing can be obtained conditional on four things:

That a majority of one congressional chamber explicitly authorizes a lawsuit. That the lawsuit concern the president’s “benevolent” suspension of an unambiguous provision of law that, by pleasing a private faction, precludes the appearance of a private plaintiff. That Congress cannot administer political self-help by remedying the presidential action by simply repealing the law. And that the injury amounts to nullification of Congress’s power.

Hence the significance of a House lawsuit, advocated by Rivkin and Foley, that would unify fractious Republicans while dramatizing Obama’s lawlessness. The House would bring a civil suit seeking a judicial declaration that Obama has violated the separation of powers by effectively nullifying a specific provision of a law, thereby diminishing Congress’s power. Authorization of this lawsuit by the House would give Congress “standing” to sue.

Congress’s authorization, which would affirm an institutional injury rather than some legislators’ personal grievances, satisfies the first criterion. Obama’s actions have fulfilled the rest by nullifying laws and thereby rendering the Constitution’s enumeration of Congress’s power meaningless.

The House has passed a bill sponsored by Rep. Trey Gowdy (R-S.C.) that would guarantee expedited consideration by federal courts of House resolutions initiating lawsuits to force presidents to “faithfully execute” laws. But as a bill, it is impotent unless and until Republicans control the Senate and a Republican holds the president’s signing pen.

Some say the judicial branch should not intervene because if Americans are so supine that they tolerate representatives who tolerate such executive excesses, they deserve to forfeit constitutional government. This abstract doctrine may appeal to moralists lacking responsibilities. For the judiciary, it would be dereliction of the duty to protect the government’s constitutional structure. It would be perverse for courts to adhere to a doctrine of congressional standing so strict that it precludes judicial defense of the separation of powers.

Advocates of extreme judicial quietism to punish the supine people leave the people’s representatives no recourse short of the extreme and disproportionate “self help” of impeachment. Surely courts should not encourage this. The cumbersome and divisive blunderbuss process of impeachment should be a rare recourse. Furthermore, it would punish a president for anti-constitutional behavior but would not correct the injury done to the rule of law.

Surely the Republican House majority would authorize a lawsuit. And doing so would establish Speaker John Boehner (R-Ohio) as the legislature’s vindicator.

http://www.humanevents.com/2014/06/23/stopping-a-lawless-president/
« Last Edit: June 23, 2014, 02:51:00 PM by rangerrebew »
"Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim tribute to patriotism who should labor to subvert these great pillars of human happiness -- these firmest props of the duties of men and citizens. . . . reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principles."
George Washington

"Only a virtuous people are capable of freedom. As nations become more corrupt and vicious, they have more need of masters."
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Offline truth_seeker

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Re: Stopping a lawless president
« Reply #1 on: June 23, 2014, 03:07:17 PM »
Will is one of the top political commentators today.  Instead of just blabber, he is offering a solution.

He and guys like him get called "liberals" by the ridiculous radical right, btw.
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Offline Relic

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Re: Stopping a lawless president
« Reply #2 on: June 23, 2014, 04:44:31 PM »
He and guys like him get called "liberals" by the ridiculous radical right, btw.

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Offline Oceander

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Re: Stopping a lawless president
« Reply #3 on: June 23, 2014, 11:35:51 PM »
it's an interesting idea

Offline evadR²

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Re: Stopping a lawless president
« Reply #4 on: June 24, 2014, 12:18:59 AM »
pshaw!
You'll never do anything about this lawless president until you have enough lawmakers that are willing to put the interests of this nation over their own political careers.
That we do not have.
November 6, 2012, a day in infamy...the death of a republic as we know it.

Offline Relic

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Re: Stopping a lawless president
« Reply #5 on: June 24, 2014, 09:07:36 AM »
pshaw!
You'll never do anything about this lawless president until you have enough lawmakers that are willing to put the interests of this nation over their own political careers.
That we do not have.

:thumbsup:

Offline Fishrrman

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Re: Stopping a lawless president
« Reply #6 on: June 24, 2014, 09:48:38 PM »
evadR2 wrote:
[[ You'll never do anything about this lawless president until you have enough lawmakers that are willing to put the interests of this nation over their own political careers.
That we do not have. ]]

I doubt we'll see that again.
Not at the Congressional level, in any case.

This will have to come from the States, and from the people. Bobby Jindal recently hinted as much, though his position probably restrains him from expressing fully what he had in mind.

Without that, there will be no check on the lawlessness.

Offline massadvj

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Re: Stopping a lawless president
« Reply #7 on: June 24, 2014, 10:34:17 PM »
Will is one of the top political commentators today.  Instead of just blabber, he is offering a solution.

He and guys like him get called "liberals" by the ridiculous radical right, btw.

I think George Will has become a much more provocative and interesting commentator since he left ABC and joined Fox.  Why that is I can't say, but I am certain I am not the only one who has noticed.
« Last Edit: June 24, 2014, 10:35:19 PM by massadvj »
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Offline evadR²

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Re: Stopping a lawless president
« Reply #8 on: June 25, 2014, 07:04:44 AM »
I think George Will has become a much more provocative and interesting commentator since he left ABC and joined Fox.  Why that is I can't say, but I am certain I am not the only one who has noticed.
Fact is I never watch ABC or any of the other alphabets so I'll take your word on it. I still do watch FOX, on occasion.
November 6, 2012, a day in infamy...the death of a republic as we know it.

Offline rangerrebew

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Re: Stopping a lawless president
« Reply #9 on: June 25, 2014, 01:39:48 PM »
pshaw!
You'll never do anything about this lawless president until you have enough lawmakers that are willing to put the interests of this nation over their own political careers.
That we do not have.

That's like saying the mafia should become priests to put their own interests aside.
"Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim tribute to patriotism who should labor to subvert these great pillars of human happiness -- these firmest props of the duties of men and citizens. . . . reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principles."
George Washington

"Only a virtuous people are capable of freedom. As nations become more corrupt and vicious, they have more need of masters."
Benjamin Franklin

Offline evadR²

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Re: Stopping a lawless president
« Reply #10 on: June 25, 2014, 02:48:55 PM »
That's like saying the mafia should become priests to put their own interests aside.
I would say there is a better chance that the mafia will take over the Vatican.
November 6, 2012, a day in infamy...the death of a republic as we know it.


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