by Norman Berdichevsky (March 2014)
The recent arrogant remarks by the President that he does not have to wait for Congress to act because he has a pen and phone are nothing less than throwing down a gauntlet to both humiliate and deprecate not just the Congress, but eventually the Supreme Court and ultimately the Constitution itself through a series of unprecedented Executive Orders. These amount to nothing less than utilizing his third handy (but unmentioned) tool – a pair of scissors to eviscerate the Constitution.
One would imagine that the Democrats who have been burned in the past by arrogant Presidents unmindful of the limitations of their authority in a representative Republic and not as in a “People’s Democracy” – as the Soviet satellite states used to term themselves or “Direct Democracy” as in Switzerland with the ability to decide on referenda open air assemblies where one man = one vote. Who today would approve of what Franklin Roosevelt attempted in 1937 – to carry out a veritable putsch by packing the Supreme Court with amenable justices (all appointed for a lifetime) and increasing their number from 9 to 15? Even worse, of course, was his executive order with the stroke of a pen to deprive Japanese-Americans of their fundamental rights, property and liberty through internment in 1942-45.
President Obama is clearly on the same path and must be stopped. Who attempted to stop Roosevelt in 1937? The “Judiciary Reorganization Bill of 1937” proposed by Roosevelt was based on his assumption that following his massive electoral victory in 1936, he could ride rough shod over public opinion and a compliant Congress. The bill would have allowed him to appoint an additional member to the Supreme Court for every sitting justice over the age of 70, which would have resulted in a total of six new justices at the time the bill was introduced. He was confident that because the Constitution does not limit the size of the Supreme Court, the proposed legislation could ignore the opposition of the sitting Congress and Supreme Court because he claimed he was acting “On behalf of the people.”
Only a short time before his bill failed to be enacted, the then sitting nine justices pronounced key provisions of his “New Deal” such as the National Industrial Recovery Act as unconstitutional. Roosevelt had argued that the court was uduly infringing on perogatives of the legislature and thus he and the Congress were being hampered in providing relief for the people through his New Deal programs by the aged and conservative, even reactionary, members of the court. This failed to sway the public, who perceived it as an effort by the President to pack the court and thus ensure it would do his bidding, a power-grab by the executive.
On July 22, 1937, the full Senate voted to send the bill back to the Senate Judiciary Committee where many of the provisions, including providing for additional justices to the Supreme Court, were eventually stripped. Finally, on August 26, 1937, the Senate passed an amended version of the Judiciary Reorganization Bill which did not include a provision to increase the number of Supreme Court justices. In spite of Roosevelt’s popularity and huge Democrat majorities in both houses, and appeals to the public, he could not act as a benevolent autocrat.
In spite of this experience, he later acted through an executive order which was a naked deprivation of the basic civil rights of American citizens even though backed by public opinion and the Supreme Court.
On February 19, 1942, President Franklin D. Roosevelt issued Executive Order 9066, which allowed local military commanders to designate “military areas” as “exclusion zones,” from which “any or all persons may be excluded.” This power was used to declare that all people of Japanese ancestry were excluded from the entire Pacific coast, including all of California and much of Oregon, Washington and Arizona. The Supreme Court upheld the constitutionality of the exclusion orders. The United States Census Bureau assisted the internment efforts by providing confidential neighborhood information on Japanese Americans. Among high ranking officials in the FDR administration and cabinet, the only one to object to the order was FBI director J. Edgar Hoover.
In 1980, President Jimmy Carter appointed the Commission on Wartime Relocation and Internment of Civilians (CWRIC) to investigate the relocation camps. The commission's report, found little evidence of Japanese disloyalty at the time and recommended the government pay reparations to the survivors. In 1988, President Ronald Reagan signed into law legislation that apologized for the internment on behalf of the U.S. government citing that the government actions were based on “race prejudice, war hysteria, and a failure of political leadership.” The U.S. government eventually disbursed more than $1.6 billion in reparations to Japanese Americans who had been interned and their heirs.
These two examples of Roosevelt, undoubtedly enjoying unmatched popularity during the Depression years, just after his election victory in 1936 and following Pearl Harbor, puts into relief the bankrupt and dangerous claims of Obama to act alone with his pen and telephone.
Even in the case of the internment of Japanese-Americans, the fact that the president had no need to consult with Congress but relied on general war hysteria overlooked the many Japanese business and civic associations that had forged links with congressmen and senators and could have impeded the rush to judgment by the president. They knew their constituents better than the President or the military authorities in Hawaii who did not ask for internment for the Japanese-Americans living there. Skipping Congress or the Supreme Court and failing to win their approval makes any executive order less likely to stand the test of time.
Obama’s curriculum vita states that that he taught constitutional law for ten years, but his modus operandi is that of the ruler of a Banana Republic. It is not the number of executive orders but the type that recalls FDR’s two huge blunders. His claim that he acts with his pen, phone and scissors because Congress is passive, turns everything on its head. He continues to use executive orders and actions to alter his own legislation and clearly the reason is to cover his own poor judgment and errors. The Affordable Health Care Act is the prime example. Conversely, he refuses to issue executive orders where they are urgently called for as in the case of issuing final approval for the Keystone Pipepline.
Moreover, he has used executive power to prevent the Congress from acting, as in the so called “Dream Act by fiat” in 2012 whereby he forestalled Sen. Marco Rubio (R-FL), who was preparing his own version.
His decision to use force in Libya had no congressional authority whatsoever, but he acted to prevent non-existent atrocities whereas he refused to move in any significant way on Syria where close to 200,000 people have been killed, at least 40% innocent civilians on both sides and the country faces imminent starvation. Yet his hands are “tied” and he cites his reasons for not acting as a lack of both constitutional authority and congressional support. He even went to congress to get approval for a strike against the Bashar Assad regime but withdrew the threat when it appeared that he would not get it. These about turns have confused our allies and enemies alike. Meaningless bluster about crossing “red lines” and threatening “consequences” have all been revealed as hollow and diminished his standing as Commander-in-Chief.
The President’s behavior should make all Americans willing to go back to the Constitution and understand its nature as a carefully crafted federal system with a division of powers and the methods approved for amending the constitution. The founders quite correctly made the system cumbersome and slow-moving to avoid the greatest threat to our freedom, liberty and rights by putting checks, balances and brakes in the way of the “popular will” that Obama claims he is eager to fulfill. (see “It Has Already Happened Here,” New English Review, April 2010).
The weakness of the congressional opposition among the divided Republicans and disappointing Supreme Court decision concerning Obamacare seems to have closed off all avenues of redress but the two alternative methods of adopting Constitutional amendments – the first and used heretofore is the traditional approach by a two-thirds vote of congress to propose an amendment and its adoption by three-quarters of the states. Yet the other method allows a path that is better suited to a grass roots revolt – via the state legislatures rather than the sitting congress in Washington, D.C.
The other method is Article V of the constitution (not to be confused with the Fifth Amendment preventing self-incrimination) allows adoption of an amendment by a national convention assembled at the request of the legislatures of at least two-thirds (at present 34) of the states. To become part of the Constitution, an amendment must be ratified by either (as determined by Congress): The legislatures of three-fourths (at present 38) of the states; OR state ratifying conventions in three-fourths of the states. A fired up group of angry voters can more easily exert pressure on their state legislator closer to home to push for such a convention.
This approach also make it easier to understand why the constitution originally required senators to be elected indirectly by state legislatures rather than by direct popular vote (until altered by the 17th Amendment in 1912), that now seems so out of tune with the “popular will” idea of what so many Americans imagine as authentic democracy. Today’s senators place many of their future re-election hopes on cruising to victory on the “coat tails” of the president and a campaign oriented towards a huge nationwide electorate exposed to the same national advertisements on radio and television. Senators elected by the people at large in their home states without regard to the nuances of urban-rural, environmental, or ethnic and religious make-up of local districts within the state legislature will only be all too ready to “wheel and deal” at election time with the president and lend their support to his programs on a national level in return for his coat tails. Contrast this with the former system during the 19th century that required close and more constant contact of U.S. Senators with state legislators less exposed to the razzle-dazzle of national conventions or pressure from the President.
A “national personality” such as Hillary Clinton able to change her home address and run as candidate in New York with the huge financial support of national backers to win the nomination for senator and then election in a state where she had never lived or with which she had not had any previous emotional or business tie was unimaginable to the founders. Nobody even remembers the defeated Republican senatorial candidate born and bred in New York state whom she beat (Rick Lazio, member of the United States House of Representatives representing New York's 2nd congressional district). Once she decided to run, the Clintons purchased a home in Chappaqua, New York, north of New York City. Even if Hillary had lost, her national prominence would have allowed her to mount another campaign from another state if she had so wished.
With all three branches at loggerheads, more and more Americans feel powerless and ignored by a President who has been the most opaque in recent memory rather than the most transparent. The deep divisions within the Republican opposition made manifest during the “shutdown” have led to increasing frustrations among many Americans and not just on the right. Robert Turley, a prominent Georgetown University law professor known for liberal views and support for Barack Obama in prior elections has since changed and represented members of Congress in a lawsuit over the Libyan war and says the president is a clear danger to the U.S. Constitution. Turley made this clear by a cogent metaphor that Barack Obama is “The kind of president that Richard Nixon always wanted to be.”
In a congressional hearing, Turley responded to questioning by House Judiciary Committee member Bob Goodlatte, R-Va; “The danger is quite severe. The problem with what the president is doing is that he’s not simply posing a danger to the constitutional system. He’s becoming the very danger the Constitution was designed to avoid. That is the concentration of power….The Newtonian orbit that the three branches exist in is a delicate one but it is designed to prevent this type of concentration. There are two trends going on which should be of equal concern to all members of Congress….. We have what many once called an imperial presidency model of largely unchecked authority. And with that trend we also have the continued rise of this fourth branch…. We have agencies that are quite large that issue regulations. The Supreme Court said recently that agencies could actually define their own or interpret their own jurisdiction.”
Michael Cannon, spokesman for the Cato Institute, expressed the deep sentiments of an increasingly critical audience frustrated over the inability of Congress to reign in the president…”There is one last thing to which the people can resort if the government does not respect the restraints that the Constitution places of the government. Abraham Lincoln talked about our right to alter our government or our revolutionary right to overthrow it. That is certainly something that no one wants to contemplate. If the people come to believe that the government is no longer constrained by the laws then they will conclude that neither are they. It is very dangerous for the president to wantonly ignore the laws, to try to impose obligations upon people that the legislature did not approve.”
Moreover, Obama’s Attorney General Holder was held in contempt by Congress over his failure to turn over documents related to the Fast and Furious scandal, the first time Congress has ever taken such a dramatic move against a sitting Cabinet official. The vote was 255-67, with 17 Democrats voting in support of a criminal contempt resolution, which authorizes Republicans leaders to seek criminal charges against Holder in spite of massive behind-the-scenes lobbying by party leaders to support Holder. In testimony before members of Congress Holder was asked whether his department‘s monitoring of journalists’ records extended to members of the Congress and he refused to answer. Like his master, hailed as the “first Black Attorney General,” he has enjoyed unprecedented protection from criticism by most of the media over his policies due to the racial politics of many Democrats and so called liberals who have elevated a person’s racial-ethnic-religious-gender identity to the first issue of consideration rather than the individual merit of persons and policies.
On January 29 this year (2014), Sen. Mike Lee (R-UT) challenged Attorney General Eric Holder to explain the constitutional basis for the executive orders Obama announced in his speech regarding the most recent postponements and changes in the employer mandate of the Affordable Care Act.
“I’ll be honest with you, I have not seen — I don’t remember looking at or having seen the analysis in some time so I’m not sure where along the spectrum that would come.”
There has probably never been a less prepared justification by an Attorney General on a question of the limits of a President’s executive authority.
Although any attempt to resurrect he 17th amendment is out of the question and a dead letter, Article V remains a yet untried path that the founders of the nation specified almost as if they were conscious of a future situation in which an ambitious unrestrained President could not be checked by a divided Congress (and impatient voters waiting to throw the rascals out), and a narrowly split Supreme Court that decides in favor of the government while rejecting the government’s own defense of legislation (The Affordable Care Act that was frequently referred to as NOT A TAX by its proponents).
A year ago nobody but a minority of activists in certain Tea Party groups were talking about impeachment. Today the book, “Impeachable Offenses” (Aaron Klein and Brenda J. Elliot, WND BOOKS, 2013) is convincing for many more than those in the Tea Party. It has become a source with which to initiate possible future proceedings. The Tea Party symbol of the rattlesnake flag is an emblem more potent than a pen and a phone or a pair of scissors, with the motto “Don’t Tread on Me” all evoke the spirit of 1776. President Obama should heed the signs. His opponents now extend beyond the Tea Party, Republicans, moderates, centrists, Libertarians of all stripes, members of his own Democratic party and many liberals who all are aware that the Constitution cannot be trampled.
Norman Berdichevsky is the author of The Left is Seldom Right for New English Review Press.
To comment on this article, please click here.
To help New English Review continue to publish interesting and informative articles such as this one, please click here.
If you enjoyed this article and want to read more by Norman Berdichevsky, click here.
Norman Berdichevsky contributes regularly to The Iconoclast, our Community Blog. Click here to see all his contributions, on which comments are welcome.