In the immortal words of Obi Wan Kenobi “I sense a great disturbance in The Force…I feel something terrible is happening…”
So far as I know, no planet has been destroyed (though perhaps ISIS has committed another massacre). But a constitutional structure is in the process of being destroyed and with it the Rule of Law. Regardless of what you think of how countries ought to treat those illegally within their borders, the upcoming decision by US President Obama regarding illegal immigrants there should worry anyone who believes in the Rule of Law and constitutionally limited government. This is because President Obama’s actions will threaten the constitutional stability of a country built on the rule of law.
For many years, I considered the American political system, through its structure, to be inherently more democratic than the Canadian. This was because the Canadian mutation of “party discipline” (far removed from the British practice) meant that a Canadian Prime Minister with a majority government would have virtually untrammeled power.
The US system, on the other hand, is based upon a dispersal of powers through the combination of separation of powers, federalism and a Bill of Rights whose origin was not conceived to be from other men. At the federal level, the finely disbursed powers among the Executive and legislative branches was designed to prevent any one branch from accumulating too much power. Thus, unlike in Canada, the President’s authority could be controlled and limited by the other branches. But I have changed my mind because what I see now in the US is a form of elected authoritarian because the Executive recognizes no limits and the other branches cannot, or will not, stop him.
The functioning of the US constitutional structure is as dependent upon a basic moral obligation to uphold the system as upon the actual words of the constitution. Those of us growing up during the Cold War marveled at the freedoms granted people under the Soviet constitution. But so what? The application did not reflect the words and, despite the wonderful words of their constitution, Soviet citizens suffered under a grinding, absolute, brutal dictatorship.
Unless the leaders of a constitutionally governed state by instinct comply with their constitutional obligations, then, regardless of the words, the constitution and the rule of law will be in trouble. The leaders must have “virtue”. If the Executive hold the constitution and its structures in complete contempt, then the system of rule of law built upon that structure is in serious trouble.
That is the problem that is being faced by the United States. There is a President who seems to deem irrelevant the restrictions placed on his power by the constitution. Previous actions of President Obama, and his Administration, have flown in the face of constitutional law and democratic practice.
Some examples are:
- Through his Attorney General he has wiretapped journalists.
- Through the IRS he has used the Internal Revenue Service to attack and persecute political opponents and prevented them from opposing him in electoral campaigns.
- Through various law enforcement agencies he has ordered that numerous laws legally passed and on the books, not be enforced. (DOMA, multiple immigration and drug laws).
- Even though Congress has, under the constitution, has oversight responsibilities over the Executive branch (the republican equivalent of what Canadians call “responsible government”), Obama and his cabinet have defied Congressional subpoenas. When ordered by courts to comply, they have made spurious “Executive privilege” claims. For example, Attorney General Holder claimed Executive Privilege over emails between his wife and a third party.
- Holder has been held in contempt of Congress and still is non-compliant. He doesn’t care.
- Waged war in Libya without Congressional authorization (note that in Canada and the UK the government got Parliamentary approval).
- Is waging war in Iraq and Syria without Congressional authorization (note that in Canada and the UK the government got Parliamentary approval).
- Seeks to enter treaties without Senate consent in violation of the constitution.
- Delayed implementation of Health care provisions in violation of clear statutory language (in fact, I cannot even imagine a legal theory that allowed him to do this, but he has done it multiple times).
- He has been found by the US Supreme Court to have been acting unconstitutionally multiple times, including the violation of First amendment religious protections (Hobby Lobby), First Amendment Association protections (Harris v. Quinn) and First Amendment speech protections (McCullen et. al v. Coakley et. Al.).
- The Supreme Court unanimously found that Obama had acted unconstitutionally when he made recess appointments to the National Labour Relations Board when the Congress was not in recess. Obama tried to simply declare that they were in recess and then make the appointments, but the Supreme Court held he could not do that. (NLRB v. Canning et. al.)
These examples, and others, demonstrate the complete contempt that President Obama has for the Congress, his political opposition and the constitution. There are no moral or ethical governors on his behaviour. What he wants to do, he does. This is aside from the merits of the actual policies he has followed. For example, I agree with trying to blow ISIS back to the Dark Ages, but I do not agree with his process. He ought to follow the constitutional rules.
It is intellectually dishonest if those who defend these actions do so simply because they agree with the policy. The policy is not the issue; this is about the Rule of Law.
Tonight the President will announce that he will order immigration laws not be enforced against many millions of people inside the US illegally. This is despite the fact that there are laws on the books regarding this, and despite the fact that last year when one state tried to enforce immigration rules within the state, the Obama administration opposed this on the grounds that this infringed on federal jurisdiction. Last year they asserted their exclusive right to enforce; tonight he announces his refusal to enforce that exact, binding, law.
The Congress has the constitutional jurisdiction to originate legislation, while the Executive has the obligation to enforce the law. The Legislature has done so. The President has said that the Congress will not act, but that is Congress’ right. They are elected…indeed, much more recently (two weeks ago) than the President. Declining to act as the president demands is, in reality, acting.
But, no matter. Tonight the Executive will announce its intention to ignore its constitutional obligation to enforce the law.
When the US Constitution was devised, the founders developed a finely tuned balance of powers between the Legislative, Executive and Judicial branches. Each was to have its own powers and role and each was to be balanced off against the powers in the other branches.
The first derogation from this came in 1803 when the Supreme Court in Marbury v. Madison took upon itself the power to declare unconstitutional, laws passed by the other two branches. In this sense it gave itself a level of superiority over the other two branches that did not exist inside the constitution, but there was some logic to it (there needed to be a referee) and the US has worked through that.
But tonight, the Executive will announce that it has usurped the powers of the Legislative branch. The elected representatives of the people (House of Representatives) and of the States (the Senate) will be relegated to third place. At best.
It is unquestionably unconstitutional. But the media will not question it because they agree with Obama, and the Republicans will do nothing because most are bought and paid for by the Chamber of Commerce (who want low-paid workers) and they all fear the media. They are abdicating their constitutional duty to defend the constitution.
So, tonight the constitution of the United States will effectively be torn up. The President will indicate that he recognizes no effective, external, constitutional or political constraints on his behaviour. He, and by this precedent, future Presidents will be limited only by such restrictions as they, in their personal discretion, choose to apply.
I sense a great disturbance in The Force…I feel something terrible is happening…