July 31 2014

News Flash: GOP Support for Constitutional Governance Not Based on Hatin'

Charlotte Hays

Hot Air’s headline on President Obama’s response to the lawsuit by House Republicans challenging the president’s outrageous abrogation of powers not his own:

Constitutional law professor on separation of powers: “Stop hatin’ all the time”

Yep, President Obama has publicly attributed the Republican effort to return to constitutional government to hatred on the part of Republicans. No constitutional issues here, folks, just backward Republicans hating, or hatin’, the president.

The president knows that he is not governing in accordance with the Constitution, but he wants to do what he wants to do.  He does have trouble, however, seeing opposition as motivated by anything other than base motives.  

As Allahpundit points out on Hot Air, the president’s approach to the lawsuit is built on cynicism:

His strategy in answering the GOP’s lawsuit in the court of public opinion is cynical and brilliant: He’s going to laugh the whole thing off as highfalutin nonsense, something the average joe shouldn’t spend two seconds thinking about. Obama the Harvard Law grad knows how significant the underlying separation-of-powers issues are and how weak his case is on the merits.

So Obama the politician is going to reassure low-information voters who lack basic civics that the whole thing is basically a goof. That’s where the use of vernacular comes in — he’s as befuddled by this constitutional folderol as you are, America. It’s just “hatin’.”  

A more serious consideration of the lawsuit comes from former White House counsel David Rivkin and constitutional professor Elizabeth Price Foley, who write this in today’s Wall Street Journal:

The House lawsuit is no "stunt," as Mr. Obama has characterized it. The lawsuit is necessary to protect the Constitution's separation of powers, a core means of protecting individual liberty.

Without a judicial check on unbounded executive power to suspend the law, this president and all who follow him will have a powerful new weapon to destroy political accountability and democracy itself.

Article I of the Constitution vests all legislative power in Congress. Article II imposes a duty on the president to "take care that the laws be faithfully executed." When a law is unambiguous, the president cannot rewrite it to suit his own preferences. "The power of executing the laws," as the Supreme Court emphasized in June in Utility Air Regulatory Group v. EPA, "does not include a power to revise clear statutory terms that turn out not to work in practice." If a law has defects, fixing them is Congress's business.

These barriers between the branches are not formalities—they were designed to prevent the accumulation of excessive power in one branch.

The president often says that we can’t “wait for Congress” to act. But as Rivkin and Foley make clear Congress sometimes doesn’t act (i.e., it produces “gridlock”) for good constitutional reasons:

If Congress cannot achieve consensus, that doesn't mean Congress is "broken." A divided Congress reflects a divided people. Until there is a compromise acceptable to the majority, the status quo is the only correct path. An impasse emphatically does not warrant a president's bypassing Congress with a pen and phone, as Mr. Obama claimed the power to do early this year.

There are legitimate concerns about standing in a House lawsuit against the president, but there is no doubt that the president is exceeding his constitutional rights. He appears to be ready to go even further in the destruction of the system the Founders created. 

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