When Richard Nixon claimed executive privilege during the Watergate investigations it was my fear that congressional and judicial acquiescence would give us a de facto dictator. There was reason to be fearful.
In a 1977 interview with Richard Nixon, David Frost asked: “Would you say that there are certain situations . . . where the president can decide that it’s in the best interests of the nation . . . and do something illegal?”
Nixon: “Well, when the president does it, that means it is not illegal.”
Frost: “By definition.”
Nixon: “Exactly, exactly.”
I had a similar fear of Bill Clinton. He was so "in your face" with his denials, whether it was about Whitewater or Monica Lewinski that I thought he would successfully innoculate himself against any and all charges of wrong doing. But his denials ultimately led to impeachment, a contempt citation, disbarment, and a $90,000 fine for giving false testimony. Though my fears were not realized, Clinton's impeachment served to tarnish the Republican brand, so much so that we are extremely unlikely to go down that road again. So where does that leave us?
It leaves us with a de facto dictator.
Liberal commentators didn't really pick up on it yesterday, but for conservatives the key moment of Barack Obama's New York Times interview was his dismissive answer to a question about the employer mandate delay. Asked whether he'd consulted with lawyers before making that call, Obama dodged, then derided the idea.
If Congress thinks that what I’ve done is inappropriate or wrong in some fashion, they’re free to make that case. But there’s not an action that I take that you don't have some folks in Congress who say that I'm usurping my authority. Some of those folks think I usurp my authority by having the gall to win the presidency. And I don't think that's a secret. But ultimately, I’m not concerned about their opinions -- very few of them, by the way, are lawyers, much less constitutional lawyers.
Congress will never make that case that Obama has usurped its authority while the Senate remains in Democratic hands, but the Courts are a different matter. The D.C. Circuit Court of Appeals, has stated it quite forcefully in its decision concerning nuclear waste storage at Nevada's Yucca Mountain, which requires approval by the U.S. Nuclear Regulatory Commission.
In a major rebuke on Tuesday, the D.C. Circuit Court of Appeals issued an unusual writ of mandamus, which is a direct judicial order compelling the government to fulfill a legal obligation. This "extraordinary remedy" is nominally about nuclear waste, writes Judge Brett Kavanaugh for the 2-1 majority, yet the case "raises significant questions about the scope of the Executive's authority to disregard federal statutes."
...
Judge Kavanaugh then offers some remedial legal education in "basic constitutional principles" for the President who used to be a constitutional law professor. Under Article II and Supreme Court precedents, the President must enforce mandates when Congress appropriates money, as well as abide by prohibitions. If he objects on constitutional grounds, he may decline to enforce a statute until the case is adjudicated in the courts. "But the President may not decline to follow a statutory mandate or prohibition simply because of policy objections," writes the court.
That is especially notable given that ObamaCare's employer-insurance requirement and other provisions are precisely such unambiguous statutory mandates, with hard start dates. The executive has broad enforcement and interpretative discretion but not the wholesale authority to suspend core parts of laws, even ones he co-wrote.
All of this highlights that Mr. Obama is not merely redefining this or that statute as he goes but also the architecture of the U.S. political system. As with the judicial slapdowns on his non-recess recess appointments that the Supreme Court will hear next term, Judge Kavanaugh warns that endorsing the NRC's legal position "would gravely upset the balance of powers between the Branches and represent a major and unwarranted expansion of the Executive's power."
There is nothing, so far, to indicate that Obama will abide by the decision of the court. The very idea seems so contrary to his nature. He is, after all, a community organizer who follows the Alinsky playbook as his governing blueprint. He will accuse anybody who has the gall to oppose him of racism:
"Some of those folks think I usurp my authority by having the gall to win the presidency."
Can there be any doubt what he meant by that? Whether he believes it himself or not, he wants everybody else to believe that those who disagree with him do it because of the color of his skin. It is an accusation frequently made by Democrats and repeated in the media. And it just may turn out to be very effective in this way: Unless something extraordinary occurs, impeachment is effectively off the table. What, then, will make him abide by the decision of the court if he chooses to ignore it?
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