Rise of the “Uber-President”: Obama Rewrites Laws, Ignores the Constitution

by Lily Dane

Tuesday the House Judiciary Committee held a hearing to examine the constitutionality of Obama’s executive use of powers.
During the hearing, titled “The President’s Constitutional Duty to Faithfully Execute the Laws,” experts discussed the president’s role in our constitutional system.
Rep. Bob Goodlatte, chairman of the House Judiciary Committee, told Fox News that Obama has been altering and changing laws enacted by Congress, and overstepped his legal authority when he made changes to Obamacare.

“Our constitutional law professor president needs a refresher course on the separation of powers provisions in our United States Constitution,” said Goodlatte, a Republican from Virginia.

Goodlatte said Obama has also made changes to other laws, including some on immigration, EPA regulations, and “a whole host of other areas.”

 


He said public awareness of the issue is important:

“I think the public has a growing awareness, but not as aware as I think they should, of the growing assertion of power by this president to do things to change laws. We’ll continue to raise public awareness about the issue. We have the ability to hold these kind of hearings to shine a spotlight.”

Goodlatte issued a statement about Obama’s blatant disregard of the Constitution. Here are some excerpts:

Our system of government is a tripartite one, with each branch having certain defined functions delegated to it by the Constitution.  The President is charged with executing the laws; the Congress with writing the laws; and the Judiciary with interpreting them.
The Obama Administration, however, has ignored the Constitution’s carefully balanced separation of powers and unilaterally granted itself the extra-constitutional authority to amend the laws and to waive or suspend their enforcement.
This raw assertion of authority goes well beyond the “executive power” granted to the President and specifically violates the Constitution’s command that the President is to “take care that the laws be faithfully executed.”
The President’s encroachment into Congress’s sphere of power is not a transgression that should be taken lightly.  As English historian Edward Gibbon famously observed regarding the fall of the Roman Empire, “the principles of a free constitution are irrevocably lost, when the legislative power is dominated by the executive.”  Although the President’s actions may not yet amount to the executive’s powers overtaking the legislative power, they are certainly undermining the rule of law that is at the center of our constitutional design.
From Obamacare to immigration, the current administration is picking and choosing which laws to enforce.  But the Constitution does not confer upon the President the “executive authority” to disregard the separation of powers by unilaterally waiving, suspending, or revising the laws.  It is a bedrock principle of constitutional law that the President must “faithfully execute” Acts of Congress.  The President cannot refuse to enforce a law simply because he dislikes it.
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President Obama is the first President since Richard Nixon to ignore a duly-enacted law simply because he disagrees with it.
In place of the checks and balances established by the Constitution, President Obama has proclaimed that “I refuse to take ‘no’ for an answer” and that “where [Congress] won’t act, I will.”  Throughout the Obama presidency we have seen a pattern: President Obama circumvents Congress when he doesn’t get his way.
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And, most notably, the President has—without statutory authorization—waived, suspended, and amended several major provisions of his health care law.  These unlawful modifications to Obamacare include: delaying for one year Obamacare’s employer mandate; instructing States that they are free to ignore the law’s clear language regarding which existing health care plans may be grandfathered; and promulgating an IRS rule that allows for the distribution of billions of dollars in Obamacare subsidies that Congress never authorized.
The House has acted to validate retroactively some of the President’s illegal Obamacare modifications.  However, rather than embrace these legislative fixes, the President’s response has been to threaten to veto the House passed measures.
The President’s far-reaching claims of executive power, if left unchecked, will vest the President with broad domestic policy authority that the Constitution does not grant him.
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The point is not what you think of any of President Obama’s individual policy decisions.  The point is that the President may not—consistent with the command that he faithfully execute the laws—unilaterally amend, waive, or suspend the law.
We must resist the President’s deliberate pattern of circumventing the legislative branch in favor of administrative decision making.
We cannot allow the separation of powers enshrined in our Constitution to be abandoned in favor of an undue concentration of power in the executive branch.  As James Madison warned centuries ago in Federalist 47, “the accumulation of all powers legislative, executive and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”

Michael Cannon, director of health policy studies at the Cato Institute, also testified at Tuesday’s hearing and offered his perspective on the president’s duty to uphold the law as it pertains to the ACA:

The law is a reciprocal pact between the government and the governed. Public order requires government to remain faithful to the law as much as it requires the citizenry to do so. If the actions of government officials lead citizens to conclude that those officials are no longer meaningfully bound by the law, then citizens will rightly conclude that neither are they.

Cannon said Obama has “failed to execute that law (PPACA) faithfully” and has “unilaterally taken taxpayer dollars made available by the PPACA and diverted them from their congressionally authorized purposes toward purposes for which no Congress has ever appropriated funds.”
He provided this scathing opinion on Obama’s “wanton unfaithfulness” to the PPACA:

It is no longer accurate to say the Patient Protection and Affordable Care Act is “the law of the land.” Today, with respect to health care, the law of the land is whatever one man says it is – or whatever this divided Congress will let that one man get away with saying. What this one man says may flatly contradict federal statute. It may suddenly confer benefits on favored groups, or tax disfavored groups without representation. It may undermine the careful and costly planning done by millions of individuals and businesses. It may change from day to day. This method of lawmaking has more in common with monarchy than democracy or a constitutional republic.

Cannon went on to explain what may happen if Obama admitted he is overstepping his authority on the PPACA:

If the president were to enforce the PPACA faithfully, by admitting he has no authority to issue Exchange subsidies or to impose the related taxes in states that refuse to establish Exchanges themselves, all observers again agree that Congress would have to reopen the statute for major revisions and possibly repeal.
At this point, it manifestly clear that President Obama is exercising legislative powers he does not possess in order to prevent Congress from exercising the legislative powers that only Congress possesses.

In conclusion, Cannon explained why Obama’s disregard for constitutional duties is so concerning:

This president’s failure – or any president’s failure – to honor his constitutional duty to execute the laws faithfully is not a partisan issue. The fact that presidents from both parties violate this duty is cause not for solace. It is cause for even greater alarm, because it guarantees that presidents from both parties will replicate and even surpass the abuses of their predecessors as payback for past injustices. The result is that democracy and freedom will suffer no matter who occupies the Oval Office.

George Washington University Law Professor Jonathan Turley, a supporter of the ACA, also testified. He believes the US government is morphing into something the “Founding Fathers would not recognize” and pointed out that a fourth branch of government is rising that is comprised of federal agencies that are writing their own regulations:

“I really have great trepidation over where we are heading because we are creating a new system here.  We have this rising fourth branch in a system that’s tripartite. The center of gravity is shifting, and that makes it unstable. And within that system you have the rise of an uber-presidency. There could be no greater danger for individual liberty, and I really think that the framers would be horrified by that shift because everything they’ve dedicated themselves to was creating this orbital balance, and we’ve lost it.”