Can Barack Obama Rewrite Federal Law?

If the president can rewrite federal laws that he doesn't like, there is no limit to his power.

Here we go again. Is the Constitution merely a guideline to be consulted by those it purports to regulate, or is it really the supreme law of the land? If it is just a guideline, then it is meaningless, as it only will be followed by those in government when it is not an obstacle to their purposes. If it is the supreme law of the land, what do we do when one branch of government seizes power from another and the branch that had its power stolen does nothing about it?

Late last week, President Obama, fresh from a series of revelations that he kills whomever he pleases in foreign lands, that the U.S. military is actually fighting undeclared wars in Somalia and Yemen, and that the CIA is using cyber warfare -- computers -- to destabilize innocents in Iran, announced that he has rewritten a small portion of federal immigration law so as to accommodate the needs of young immigrants who came to the U.S. as children and remained here. By establishing new rules governing deportation, rules that Congress declined to enact, the president has usurped the power to write federal law from Congress and commandeered it for himself.

Immigrants should not be used as political pawns by the government. When government does that, it violates the natural law. Our rights come from our humanity, and our humanity comes from God. Our rights are natural and integral to us, and they do not vary by virtue of, and cannot be conditioned upon, the place where our mothers were physically located at the time of our births. Federal law violates the natural law when it interferes with whom you invite to your home or employ in your business or to whom you rent your property or with whom you walk the public sidewalks.

When the government restricts freedom of association based on an immutable characteristic of birth -- like race, gender or the place of birth -- it is engaging in the same type of decision-making that brought us slavery, Jim Crow and other invidious government discrimination. Regrettably, the feds think they can limit human freedom by quota and by geography. And they have done this for base political reasons.

Along comes the president, and he has decided that he can fix some of our immigration woes by rewriting the laws to his liking. Never mind that the Constitution provides that his job is "to take care that the laws be faithfully executed," and that "all legislative power" in the federal government has been granted to Congress. He has chosen to bypass Congress and disregard the Constitution. Can he do this?

There is a valid and constitutional argument to be made that the president may refrain from defending and enforcing laws that he believes are palpably and demonstrably unconstitutional. These arguments go back to Thomas Jefferson, who refused to defend or enforce the Alien and Sedition Acts because, by punishing speech, they directly contradicted the First Amendment. Jefferson argued that when a law contradicts the Constitution, the law must give way because the Constitution is the supreme law of the land and all other laws are inferior and must conform to it. This argument is itself now universally accepted jurisprudence -- except by President Obama, who recently and inexplicably questioned the jurisdiction of the Supreme Court to invalidate the Affordable Health Care Act on the basis that it is unconstitutional.

Nevertheless, there is no intellectually honest argument to be made that the president can pick and choose which laws to enforce based on his personal preferences. And it is a profound violation of the Constitution for the president to engage in rewriting the laws. That's what he has done here. He has rewritten federal law.

Only Congress can lay down specifics such as in order to avoid deportation and qualify for a two-year work visa, one must have entered the U.S. prior to age 16 and possess a valid American high school diploma or be a military veteran, as the president now requires. By altering the law in this manner -- by constructing the requirements the government will impose -- the president has violated his oath to enforce the laws as they are written. His second responsibility in the Constitution (the first is to defend the Constitution) is to enforce federal laws as Congress has written them -- hence the employment of the word "faithfully" in the Constitution -- not as he wishes them to be.

Congress should have enacted years ago what the president is now doing on his own, because it is unjust to punish children for the behavior of their parents, and it is unjust to restrict freedom based on the place of birth. But this can be remedied only by Congress. If the president can rewrite federal laws that he doesn't like, there is no limit to his power. Then, he will not be a president. He will be a king.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written six books on the U.S. Constitution. The most recent is "It Is Dangerous To Be Right When the Government Is Wrong: The Case for Personal Freedom."

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  • ||

    I wonder what would have happened if the current population, or at least a portion of it, was of the same stuff the Patriots of 1776 were made of. Would this usurper and his similarly tyrannical predecessors have been allowed to execute their depraved policies?

  • ||

    In your hypothetical situation, none of those guys would have been able to get elected as dogcatcher. So....no.

  • ||

    Majorities, dude.

  • Heroic Mulatto||

    Remember only 1/3 of the American population were Patriots, another third were Tories. The rest were neutral.

  • wT||

    The Tories were the Patriots.

    The others were revolutionaries/traitors or ambivalent.

  • ant1sthenes||

    The Tories were loyal to their state. The Patriots were loyal to their people.

  • wT||

    That's why 1/3 moved to Canada.

  • Mo' $parky||

    On the other side of that coin, if there had been 330 million people living in the colonies the Constitution would have been vastly different.

  • WTF||

    Would this usurper and his similarly tyrannical predecessors have been allowed to execute their depraved policies?

    When you consider that they went to war with the world's greatest power over a tax on a breakfast drink that wasn't even coffee, I think the answer is obvious.

  • LibertyHight||

    You are being facetious right? If not, you need to go back and learn your history.

  • ||

    Judge Napolitano, I have all of your books and read all of your articles. You are one of the clearest, most important voices for Liberty in our country today. Thank you.
    And...kudos to Reason for hosting you.

  • Pi Guy||

    No Kings!

  • Taco||

    No King but King Jesus!

    FIFY

  • Daniel||

    It is supposed to be up to the people to prevent the government from taking too much power. When will The People hold the Executive and Legislators accountable?

  • wareagle||

    the article asks the question as though the subject gives a shit about the answer. Obama has raised "fuck you, that's why" to an exponential level.

  • The Hammer||

    A rare miss, anonbot.

  • Whiterun Guard||

    Can Barack Obama Rewrite Federal Law?

    Yes We can.

  • krand7||

    Obviously Obama bin Lenin believes he can. But then he sees himself as the General Secretary of his fervently wished for Soviet Union of Amerika! A true heir of Lenin...

  • Whiterun Guard||

    our humanity comes from God.

    See you had to go and shoot yourself in the foot, didn't you.

  • Agile Cyborg||

    As one atheist to another: quit nitpicking.

  • Devil's Advocate||

    That is just the Judge's way of saying that our rights pre-date the government, and their existence thus should not depend on the government or its laws. If you know anything about the Judge, you know that he is not seeking a theocracy.

  • Cloudbuster||

    I see it as a very frustrating blind spot that some libertarians, like Napolitano, believe that it would be possible to maintain a libertarian state while opening the borders to vast numbers of immigrants who have no intellectual, cultural or practical interest in libertarian ideals.

    We can barely make headway with promoting libertarian ideas with our current population. Add a few dozen million more immigrants from third world banana republics and it will be an utterly hopeless task.

    I understand why open borders fits the libertarian ideal, but it just doesn't pass the "what would really happen" test.

    The only chance at really increasing the libertarian influence on our political institutions is by making our immigration policy much more strict and selective.

    Napolitano, much as I respect many of his ideas, is wrong to think that "Congress should have enacted years ago what the president is now doing on his own" -- it's a recipe for cultural, political and ideological suicide.

  • T o n y||

    If your ideas have merit they should be able to be sold to nonwhite people too, don't you think?

  • mybarber||

    You just don't get it.This country was founed on freedom to be left alone as long as you do not harm others,There is no right to force your whims on others or for one man to decide the law.I've read many of you post and have concluded you hate freedom for those who disagree with you.You are a poor excuse for a humanI am not a libertarian,I'm a classical liberal and you sir are a fasist

  • T o n y||

    This country was founded with an entire population of slaves.

  • Mr. FIFY||

    Slavery ended a LONG time ago.

    Get over it.

  • T o n y||

    The claim was:

    "This country was founed on freedom to be left alone as long as you do not harm others"

    I simply provided a fact that contradicted the claim.

    Why don't you guys get over your childish nostalgia for a form of a country that never existed?

  • Mr. FIFY||

    Why don't you get over the fact that slavery and Jim Crow are both long-dead, never to return, and only missed by people who truly fit the definition of "racist"?

    While you're at it, get over your childish desire for a country where no one ever gets fat, no one smokes, and no one makes over $249,999 a year?

  • LibertyMark||

    God, Tony, just because the ideas of human liberty were grossly and disgustingly ignored for slaves does not mean that the ideas themselves are bankrupt. It means the people who thought them up and tried to implement them were imperfect, and bankrupt in their thinking on that.

  • Mr. FIFY||

    I can't figure out why he's so concerned about liberty. If he truly were, he'd give up voting for Democrats.

  • ||

    Are you proposing we kick out everyone of Irish/German/Italian/Swedish/etc. descent? Why is it cultural, political and ideological suicide to let in immigrants now but it wasn't back then?

  • Cloudbuster||

    Two reasons:

    First, because they all were products of the Western European, Protestant and Catholic cultural traditions and didn't materially alter the basic moral framework of the citizenry. Our current waves of Central American, South American and African immigrants have lived for generations under cultures were rent-seeking and socialism, tribalism and cronyism are the norm. We have no moral obligation to invite vast numbers of people into our country that don't share our values, and then hope we can change their minds.

    Second, during the great waves of European immigration, the U.S. had no social welfare system to speak of. Immigrants were pretty much forced to live the libertarian ideal, because there was no socialist state of which they could become clients. That is no longer true. You can't simultaneously maintain a libertarian immigration policy and a socialist welfare state. Abolish the latter and I'll be a lot more willing to support the former.

    (to be continued)

  • Cloudbuster||

    (continued)

    It seems odd that in smaller laboratories, the obvious is clear. Libertarians support freedom of association on a small group level, such as clubs. I think most libertarians tend to be opposed, for example, to Vanderbilt Universities move to force student groups to accept and even consider for leadership people who do not share the convictions central to the group's existence -- such as requiring Christian groups to allow Atheists to hold leadership positions, or Gay student groups to allow people who are opposed to homosexuality to hold office in their organizations. I predict that it will only be a matter of time before flooding unpopular groups with antagonistic members will be a tactic of idealogical warfare against minority opinion groups there.

    Shouldn't this be obvious on a national level, that if we want to have a libertarian society, that insisting that immmigrants to that society share our values is not "destroying freedom" as some posts below accused, but protecting it? We have a right as a nation to vet our immigrants, not simply allow mass numbers of people to flood our nation regardless of their political and cultural beliefs.

  • benji||

    Are you proposing we kick out everyone of Irish/German/Italian/Swedish/etc. descent? Why is it cultural, political and ideological suicide to let in immigrants now but it wasn't back then?


    It was. Read the Congressional Record of the era, a primary argument against immigration was that it was going to allow in a bunch of Communist and Catholic subversives.

  • ||

    The only chance at really increasing the libertarian influence on our political institutions is by making our immigration policy much more strict and selective.

    Oh, so we have to destroy freedom in order to save it?

    Ever think that perhaps making naturalization more strict and selective is enough to achieve your stated goal? Why jump all the way to restricting immigration?

  • Cloudbuster||

    Making naturalization more selective (which isn't a bad thing), but not making immigration itself more selective, is a recipe for creating a permanent underclass. I fail to see how that promotes freedom.

  • ||

    That's like saying that allowing only Wal-Mart shareholders to have a vote in how Wal-Mart is run fails to promote the freedom of its customers and employees.

    If you are allowed to freely travel, reside, and work somewhere, you are freer than if you aren't -- regardless of the rules of citizenship where you might be.

  • Cloudbuster||

    Walmart customers don't actuall *live* inside of Walmart.

    Do you know what other nation had a large and growing population of immigrants and others that lacked citzenship status? South Africa. How'd that work out? A lot of people don't realize that much of the original black population of South Africa was the result of waves of immigration from southern and central black African nations. South Africa decided not to grant citizenship to their descendants. Eventually, as you know,the injustice of the situation overwhelmed them, and South Africa is not a place you want to live these days. It's a far bloodier, more violent, poorer place than it was under Apartheid, even for its black citizens. The black population does not share the political or cultural ideals of the Afrikaner population. The slow genocide of the Afrikaners proceeds apace and South Africa descends into just another African hell-hole, like Rhodesia before it.

    We in the U.S. already have birthright citizenship, so if you allow unrestricted mass immigration, you're essentially just pushing mass naturalization down a generation.

  • ||

    Are you serious? South Africa? That's my example.

    One class of people abrogate the rights of travel, labor, and residence of another class of people -- limiting the exercise of those rights solely to the carriers of government issued permits. Sounds like... immigration policy! Yet Apartheid is universally despised while identical restrictions on migration are the worldwide norm.

    I'll need a cite on your claim that there was significant black immigration with a concurrent lack of naturalization. I've not heard that one before.

  • Cloudbuster||

    Yet you'd deny citizenship to an entire immigrant class of people. You may not be restricting their travel, labor and residence rights withing the country, but certainly restricting their political rights relegates them to second-class status. Create a large enough second-class like that and you're creating a political Apartheid.

  • Cloudbuster||

    I'd have to qualify my own words by saying that we're talking more about *migration" and forced assimilation than immigration. The history of the southern horn of Africa is incredibly complex. The modern national borders are an early 20th century British creation, though the existence of white Afrikaaner nations in southern Africa dates back to at least the mid-1600s. Forced British consolidation of the area caused the political and demographic problems that resulted in Apartheid.

    As for the cite, you can research it anywhere by tracing histories of the Boer, Afrikaans, Zulu and Xhosa peoples. South Africa was very lightly populated during the 14th and 15th centuries and the Dutch settlers -- those who would become the Afrikaans and Boers -- maintained their own separate nations and political systems up into the early 1900s.

    When the British made war on the Boers, starting late 1700s- early 1800s, they were pushed northward, establishing their own independent nations, such as the Orange Free State and the South African Republic.

    (to be continued)

  • Cloudbuster||

    The Boers first encountered and conflicted with the Zulus as they were fleeing British conquest in the south. When Boer Voortrekkers attempted to negotiate with the Zulu Kingdom for territory north of the Orange River, the Zulus captured and massacred the entire diplomatic delegation, and 250 Voortrekkers camped nearby. This ignited a war and the Voortrekkers eventually defeated the Zulus at the Battle of Blood River. If you look up maps of the area at the time, you can see that the Zulu presence was at the fringe of what is now considered South Africa. The British colonies and the Boar republics were firmly ensconced in much of the present-day territory.

    The Zulus and Xhosa were in the midst of a long migration southward from central Africa. Their nations became intermixed and bordering with the Boer/Afrikaaner nations.

    It was the final defeat of the Boers in 1902, by the British that caused the consolidation of all the previously-independent Republics under what we now consider South Africa. The Zulu, Xhosa and other tribal populations spread through the area. So, what occurred wasn't really "immigration" but forced assimilation and integration.

    The Boer/Afrikaaners were pretty much screwed at this point, no matter what they did. They, who had until defeat, maintained their own white, free nations, gained power in the new South Africa and tried to protect themselves from the political domination of the majority blacks. In 1948, Apartheid was born.

    (to be continued)

  • Cloudbuster||

    It was a hopeless solution to a hopeless problem. It was injust on its face, and all it did was delay the descent of South Africa into what it is becoming today, and delay the genocide of the Boers/Afrikaaners.

    The only way the Boers/Afrikaaners ever had a chance of surviving and prospering is if they could have kept their own independent nations and not been forced into the integrated South Africa.

    That should be a lesson for libertarian Americans. You cannot maintain a state with the political structure you desire when overwhelmed with vast numbers of people who don't share your goals, desires and cultural or political heritage.

    The condition of the Afrikaaners in South Africa right now is terrible. They are the victims of an on-going slow genocide, they are subjected to the opposite of the Apartheid they once implemented -- "positive discrimination" where official government hiring policies favor the hiring of majority blacks over whites. The nation has descended into brutal violence that is decimating the white population but also endemic among the black population. Life is, ironically, less safe for a black South African now than under Apartheid.

    Outcomes matter. Reality isn't as pretty as you'd like, and most people out there aren't yearning to live your libertarian ideals. If that's what you want for the U.S., please, keep advocating open borders.

  • ||

    Thanks for the summary. But I see that the core point I was contesting -- the claim that the restrictions on individual rights of travel, residence, and labor except by permit were a reaction to contemporary black immigration -- is not the case. That legislation started in the 20th century and significantly postdates the migration events you describe.

    You describe Apartheid as a reaction to a political problem. But that's not the case. Whites already had all the franchise. The crime of Apartheid is not that it didn't let blacks vote -- it's that it restricted their individual rights.

    You can't say that even further restricting blacks' rights of travel, residence, and labor was a political response to a political problem: it was a political response to a perceived racial problem promulgated by unvarnished protectionists. In the same way, immigration restrictions are a political response to a perceived national problem promulgated by unvarnished protectionists.

  • Cloudbuster||

    I don't think that regarding it as a political problem or a racial problem is an either/or proposition. There were elements of both.

    But the history of post-apartheid South Africa shows every one of the Afrikaaners' fears to have been well-founded. Everything they feared has come to pass. They are now the victims of violence, genocide, oppression and injustice in the rapidly-decaying shell of the nation that they built.

    Apartheid was the wrong solution, but once the British forced integration of the various states was accomplished, I can't think of a solution that would have avoided this outcome.

  • ||

    Since the post-Apartheid problems you perceive have to do entirely with the government, one obvious solution would have been to retain the franchise among the whites, while recognizing equal individual rights of all residents.

    Such a cultivated franchise can even be done nonracially by basing it on owning property or some other interest of civilized governance, such as existed in British South Africa prior to Union.

    After all, Hong Kong or Singapore historically have had a very restrictive franchise bordering on dictatorship yet are, politics aside, quite free and prosperous.

  • Cloudbuster||

    That might have worked. I think they would have been under tremendous international pressure to grant full citizenship rights to the black population, and the black population would still have used it as an issue of grievance, but it certainly would have been better than Apartheid.

  • LibertyHight||

    I have learned alot from both of you. Thank you both!

  • LibertyMark||

    Cloudbuster: You make a disgusting consequentialist argument that if embracing human liberty has a chance of not turning out right, then human liberty must be destroyed in that area.

    This is one of the standard arguments for all of government power.

    And, you are probably not right (immigrants tend to be hard workers, not on welfare, etc, etc).

  • Cloudbuster||

    There is no fundamental human right to live in or be a citizen of the United States of America. We have no moral obligation to allow anyone who wants to, to immigrate.

    And I'm not wrong. Social welfare spending on hispanic and African immigrants far outpaces social welfare spending on the native population.

  • ||

    There is no fundamental human right to live in ... the United States of America.

    Someone else on this thread is spoofing your name -- someone who understands the concept of negative rights and says things such as "All that is necessary is for the government to ensure that people leave you alone..."

  • Cloudbuster||

    There will always be a tension between the exercise of government power and individual power. The only completely free state is a state of anarchy. That simply doesn't work in the real world. We compromise to secure broader freedom by sacrificing some freedoms to government. For example, allowing the government to exercise police powers, to protect other civil and criminal rights means we give up the right or power to individually enact our own enforcement of our rights -- we cannot simply go beat up someone who stole our car because we, individually think it is just. We cede that power to the government. Likewise, it's an important and central role of the state to secure the boundaries, membership and political integrity of the state in which we reside.

  • mybarber||

    The truth is,progressives(socialist)hate a limited government.They do not like democracy either,too many might not like their goals.They long for a stong ,small,group to bring the country to their vision of perfection.Gun control,smoking bans,high taxes and so called regulations(illegal laws), ,picking winners and losers in the economy and the total control of so called health care.Plus the ability to kill those they do not like.(See the drone war}

  • wT||

    our humanity comes from God. Our rights are natural and integral to us, and they do not vary by virtue of, and cannot be conditioned upon, the place where our mothers were physically located at the time of our births

    Then Mexicans born in Mexico have the same rights as Mexicans and Americans born in the U.S. and Obama should abolish the concept of citizenship.

    Give us your tired masses...

  • ||

    Then Mexicans born in Mexico have the same rights as Mexicans and Americans born in the U.S.

    Yes.

    and Obama should abolish the concept of citizenship.

    No.

    Citizenship is not a right. It is an entitlement constructed and granted by government.

  • wT||

    So, if I'm too Jewish, the government can deny me birth citizenship and deport me on a ship to no where. That is what the NAZIs did. Also, their government granted citizenship to 'ethnic Germans' wherever they were born.

    I suppose freedom, as opposed to slavery, is an entitlement constructed and granted by government.

  • ||

    So, if I'm too Jewish, the government can deny me birth citizenship

    Yes. It's obnoxious, but not a violation of your rights.

    and deport me on a ship to no where.

    No. You have the right to live where you want. Government doesn't have the legitimate right to deport you without specific justifiable cause -- essentially the same sort of cause as would be used to imprison or quarantine you.

    .500 is a great batting average, but it still gets you an 'F'.

  • wT||

    I have the right to live where I want, but Citizenship is not a right. It is an entitlement constructed and granted by government?

    So, I can live where I want as long as it is where the government tells me to live.

    I am completely free to live in a concentration camp or in a political prison or on a boat that is not allowed to dock anywhere. Freedom's just another word for nothing left to loose.

  • wT||

    Sorry, lose not loose.

  • ||

    I'd recommend worrying less about spelling and more about logic.

  • wT||

    Truth is not true. It is an entitlement constructed and granted by government.

    WAR IS PEACE, FREEDOM IS SLAVERY, and IGNORANCE IS STRENGTH as constructed and granted by government.

  • Cloudbuster||

    You make the naive, idealistic mistake of thinking that all those tired masses are just dying to play by your rules and share your sense of fair play.

    You're like the simpletons at Occupy Wall Street who were shocked -- shocked -- when people came into their camps and started taking advantage of the communal food and communal property.

  • T o n y||

    This article is all over the place. Derider has already pointed out Reason taking both sides of this issue. "Whatever Obama does is bad." Might as well just print that on every page and save the production costs.

    Natural rights from God are, obviously, a fairy tale. So any philosophy that follows from such a premise is problematic. Why can't you assert any right as natural and from God? Why not a right to healthcare? Did God speak to you and tell you there shall be no right to healthcare, but there shall be a right to armed property rights enforcement? Gotta do better than natural rights.

  • The Hammer||

    Means matter, dipshit. If Obama has the power to unilaterally change laws in ways that libertarians like, he also has the power to unilaterally change them in horrible ways, which he seems to want to do far more often than in good ways.

    And as for natural rights, you are either purposely obtuse or the dumbest motherfucker on the planet, probably a combination of both, because I've seen at least 8 different people on here explain them to you down to a 1st grade level. Natural rights are those that can be universally applicable. Life, Liberty, Property. Healthcare cannot be a right because giving you access to free healthcare requires an infringement upon the liberty of the person who is forced to provide it. Stop with this weak-ass strawman bullshit.

  • T o n y||

    You cannot make an argument for the enforcement of property rights (or life and liberty for that matter) that is substantially different from an argument for healthcare. Both require taking taxes to provide services. There is no principle that separates property rights from healthcare. Libertarians argue for the former on consequentialist grounds and against the latter on natural rights grounds. It is an unresolvable contradiction.

  • ||

    One clear way to recognize natural rights is that they do not require the government. They in fact preexist and precede government and government powers.

    Having someone else pay for your health care requires some power to take the funding from someone else. Recognizing and enforcing your property rights requires no such power. Governments are useful to clarify and adjudicate disagreements over property, but you can secure those rights yourself and through completely private means if you have to.

  • T o n y||

    Yeah without government "property rights" means exactly "he with the biggest gun gets the property."

    Property rights inherently entails police and courts and such, which are paid for by exactly the same taxing and spending powers government would use to provide access to healthcare.

    What does it mean for a right to precede government? Where does it exist? The aether?

    Coming at this rationally, you cannot resolve this contradiction, and smarter men than I have said so. But you're not coming at it rationally, you're saying the rights you like are natural and precede government, and the rights you don't like are illegitimate, and your justification amounts to "because I say so." Or "because Santa Claus says so."

  • ||

    Yeah without government "property rights" means exactly "he with the biggest gun gets the property."

    Dude, with government "property rights" means exactly "he with the biggest gun gets the property."

    Property rights inherently entails police and courts and such...

    Mountain lions respect each others' property. They have neither police nor courts nor such.

    What does it mean for a right to precede government? Where does it exist? The aether?

    This notion is the very cornerstone of the Declaration of Independence. Don't act like it's moronic.

    You have two choices: you can believe that rights are defined apart from government or you can believe that might makes right. Once you choose the latter, you don't get to make normative arguments that would, say, define a right to health care but not define a right to own slaves.

  • T o n y||

    "property rights" means exactly "he with the biggest gun gets the property."

    So everywhere with government, all property is owned by government? (No, that's just libertarian exemplar Hong Kong.)

    Mountain lions respect each others' property.

    Yeah, with the "might makes right" principle.

    This notion is the very cornerstone of the Declaration of Independence.

    So the Declaration relies on a convenient fiction. Magic is not real just because Thomas Jefferson wrote about it. I would be perfectly happy saying there are rights that we will assume to be innate to humans. But why should there be only one small list of them? Why couldn't it be expanded? It's been the most laudable project of the US to expand the list of rights people have and the types of people who have access to them. We gonna stop now because libertarians have declared that we've figured out what maximum freedom means?

    "Might makes right" is inherent to every power relationship in the world. The whole point of government is to concentrate legitimate force in one place, and the point of democratic government is to give the people control over it. A heartfelt assertion of natural rights means shit when a noose is around your neck. So what you can hope for is that it got there via a legitimized system of law and order and you deserve it, and not because some psycho in anarchotopia decided his version of natural rights were a little different from yours.

  • ||

    "property rights" means exactly "he with the biggest gun gets the property."

    So everywhere with government, all property is owned by government?

    "Gets" does not mean "rightfully gets" or "legitimately gets". But government indeed uses its biggest gun to enforce who gets the property -- just as a private enforcement agency would in an anarchy or an individual would in a pre-civilization non-state.

    Mountain lions respect each others' property.

    Yeah, with the "might makes right" principle.

    Not quite. With the "I will commit to sustaining serious injury to retain what is mine, but I won't commit to sustaining serious injury to acquire what is yours" principle. It's close to "might makes right", but it inherently recognizes the asymmetry that individually owned property actual represents.

  • Mr. FIFY||

    Tell us where you live, Tony, so we can invade your property.

    While we're jumping on your furniture and eating all your sammich materials, you can then tell us how you feel about private property.

  • Cloudbuster||

    It's the different between negative and positice rights.

    Property rights are negative rights. All that is necessary is for the government to ensure that people leave you alone -- that they don't defraud you or steal your property or run you off your property.

    Health care is a positive "right" ("positive" rights aren't actually rights at all). Government can't "provide" health care to anyone without taking the resource for such care from someone else.

    If I give 10 dollars out of my own pocket, on my own initiative, to get a child vaccinated, that's an admirable voluntary act.

    If the child's father holds me up at gunpoint to take my $10 to get his child vaccinated, that's a crime.

    If the government takes 1 cent from 1000 people to pay a doctor to vaccinate that child, we call it "socialized healthcare." But the father with the gun are both taking the money from people whether they like it or not. It's just a matter of scale.

  • T o n y||

    All that is necessary is for the government to ensure that people leave you alone

    How do they do this? Are police and courts and jails free? No? So don't they have to take some resources from people and provide them to others to maintain property rights? Sounds like a positive right to me.

  • Keith3D||

    Sounds like you're well on your way to anarchism.

    Here's one way to solve your little quandary: abolish taxes and let govt be supported by volunteers and/or voluntary contributions. That'll shake out the difference between govt redistributing wealth, and govt "forcing" people to pay for things that they always were willing to contribute to historically anyway, just cause govt only knows how to operate via mandatory rules and guns.

    Not to mention letting citizens do things for themselves, without either prohibiting competition with the govt, or making so many regulations that the cost of doing so is prohibitive.

  • T o n y||

    Government is what prevents guns from being the only source of legitimacy for rule enforcement. This system would only work if everyone voluntarily decided not to ever infringe on the "rights" of others.

  • Keith3D||

    You are confusing a lack of government with a lack of laws or law enforcement.

    But we don't need to go that far, I only suggested you could start by abolishing taxation and restrictions on competition, not the govt in its entirety. Perhaps you think if people weren't forced to support the government via taxation then none would?

  • The Hammer||

    Ok, one more. Government is a collection of people with the most and biggest guns. That doesn't confer legitimacy. The consent of the governed does, and our government is very close to losing that if it hasn't already.

  • T o n y||

    It only loses that if elections become corrupted. Is that the case? Or do you just not like their outcomes?

  • Keith3D||

    "It only loses that if elections become corrupted. Is that the case? Or do you just not like their outcomes?"

    If the majority of the people vote in a free and fair election, to enslave the rest, would you "like the outcome"? Democracy doesn't actually equate to consent of the governed, just consent of 51% of them. Which is far better than other forms of govt but also far from perfect.

  • Devil's Advocate||

    The reason that the government can impose all kinds of onerous taxes and regulations is that it has a ton of guns backing up its actions. If you don't believe me, just ask the victims of no-knock raids.

  • The Hammer||

    You just repeat the same stupid shit over and over. It's not an unresolvable contradiction, you just can't argue against it because it is logically coherent. I'm done with your bullshit.

  • ||

    Stop with this weak-ass strawman bullshit.

    But then what's left for him?

  • Mr. FIFY||

    Being his usual whiny-bitch self?

  • wT||

    Healthcare cannot be a right because giving you access to free healthcare requires an infringement upon the liberty of the person who is forced to provide it.

    +++

  • T o n y||

    Just like it's an infringement on police and judges for them to work on disputes regarding property?

  • ||

    When police and/or judges contract with individual private citizens to deliver services beneficial only to those individuals, it is called corruption.

    The same isn't true for doctors and nurses.

  • ||

    You haven't seen Tony's health care plan.

  • Coach Panto||

    Tony you are making incorrect assumptions. Here is another way to explain the basis for natural rights.

    1. Regardless of where they come from, the natural rights of Life, Property, and Liberty are "natural" because they are universally asserted (claims are made, claims are defended) by ALL animals and humans, even whiny utopian socialists.

    Your collectivist ideas may dictate that you "let" someone steal your property or beat your ass or frick you wife, but your body resists these transgressions. You "feel" pain when you lose things, regardless of your fecal ideology. Your physiology is defending your natural rights, because we evolved to survive that way.

    2. Trade is the way we cooperate. We agree (without coercion) exchange labor or property to better arrange capital and goods for later trades or consumption. If there is coercion, it's not a trade, it's an act of war (extortion, etc). Deemocrats (like you?) love extortion.

    3. Government is a trade of money for security of natural rights. If you don't like the trade, you can protest the way the govt provides security, or go live in the woods and recognize no govt. Govt exceeds its security charter when it promises positive rights like healthcare, and people become parasites when they assert positive rights. In the old days, parasites were exiled or killed. Maybe we should go back to that.Whaadya say, Tony. Are you a parasite? Methinks you might be.

  • T o n y||

    Animals have a concept of property?

    Anyway, Government is indeed a "trade of money for security" but natural rights are, as demonstrated, a fairy tale, and the distinction between negative and positive rights is nonexistent, since the protection of so-called negative rights requires positive action, not to say tax money. Whether we collectively pay for police, courts, armed defense, or healthcare is not a question of first principles but of priorities. Every other advanced country on earth has figured out it's a good idea to collectivize healthcare security. I think it would be a good idea here. And "If you don't like the trade, you can protest the way the govt provides security, or go live in the woods and recognize no govt."

  • Mr. FIFY||

    IF we buy your premise, Tony, then egalitarianism is, also, a fairy tale.

    Accept that, or shut the fuck up.

  • T o n y||

    Egalitarianism is the ethical principle that people deserve equal rights and opportunities. The claim that people are born equal is perhaps a fairy tale, but I didn't say fairy tales were bad. Jefferson used natural rights to great rhetorical effect. But when you start dictating which policies we're allowed to have and in doing so minimize the number of rights people have, that's when I start pointing out that you're just asserting policy preferences and you don't get cosmic gold stars for them.

  • Mr. FIFY||

    People ARE born equal. It's how their lives turn out, that are not guaranteed by law.

    Much as you try, that will never happen.

    BTW, I have no power to dictate policies; people in Washington DC, however, do have it - and they use it far too often, mostly to get themselves re-elected.

  • Coach Panto||

    Animals are instinctively territorial. They claim and compete for land and food.

    The natural rights of Life, Property and Liberty are claimed and defended universally, by observation, not by fairy tale imagination. They are negative rights because the claim is one of non-infringement.

    If two humans claim the same property, they can fight for it or agree to an arbitrator. Most opt for govt to arbitrate.

    We all know how bad you want to make an extortive claim on others' property in order to convert it to healthcare services because you think it's fair and humane and it makes you feel good to partcipate in extorting from the haves and giving to the have-nots. Some egalitarians love equality so much they would rather two people be dead than unequal.

    Are you one of these? Let's say you and I have been bitten by a poisonous snake and there is one dose of antidote sitting on the table. Would you rather
    A) fight me for it
    B) let me have it and you die
    C) I let you have it and I die
    D) Neither of us have it and we both die

    My answer is A. If you said B I wouldn't believe it. You might want C, but it wouldn't happen. I predict your ideological answer is D, but that your instinct would be voting for A.

    By the way, Obamacare was not a trade, it was an act of war, I don't like it, and I'm protesting it. We'd be better off if Obama and the rest of you egalitarian utopians would go live in the woods. Unfortunately you'd all be dead in a month because you're such crappy traders.

  • T o n y||

    You are seriously muddled. I was accused of being an egalitarian, I didn't say I was one. I guess I have to fight you for the antidote. Scarce resources and pure anarchy. Fun!

    Healthcare reform is an act of war? Was Medicare or Social Security? Was the ADA? All acts of war? Because the people who struggled to pass them thought they were attempts to increase economic security. Something far more relevant to the lives of most people than national security in this day and age.

  • wT||

    If another animal comes into my yard, my dogs will chase it away or kill it. I have disposed of many dead cats, rats, skunks and rabbits.

    Watch the Animal Channel and see how a pride of lions see their range as for the common good of all lions.

    I suppose the lions are not being logical.

  • LibertyMark||

    I loved this ringing endorsement of human liberty:

    "Federal law violates the natural law when it interferes with whom you invite to your home or employ in your business or to whom you rent your property or with whom you walk the public sidewalks."

    All you closed-border people remember: the anti-immigrant laws you support are abridgments of YOUR liberty. What is so hard to understand about that?

  • Mr. FIFY||

    "Anyway, Government"

    You capitalize that word like a fundie capitalizes the word "god".

    The similarities are so evident, Stevie Wonder could point them out.

  • wT||

    Is Tony an employee of Reason; the arguments are too good and numerous.

    I'll bet Tony is a Reason intern whose job is to add spice to web site.

  • Milord||

    Several misstatements in your post, judge. Congress did NOT decline to enact the rules in question. They declined to ACT at all. The President did not rewrite law, he exercised discretion by changing the rules of enforcement of the law. A jurist with your experience knows that, while it may accomplish the same end, it is not at all the same thing in law.

  • vicky||

    Against the law.

  • Johnno||

    Judge, while I hope most can agree Obama has no right to legislate, I have to take issue with the idea that it is "unjust" to restrict freedom based on place of birth. Without such restrictions, we would have half the population of Africa moving in for the sake of Freedom.

    Controls on our immigration have existed for a very long time and became even more strict under FDR, as he instituted a wide range of entitlements that would obviously be unsustainable with unrestricted immigration.

    To move to open borders would require us to do away with practically every last social safety net and labor law we have in place today. That may be the hardcore libertarian view, but it is one I doubt many people can get behind, even those on the right.

  • vicky||

    Didn't mean to repeat, sorry.

  • vicky||

    "unjust to restrict freedom based on place of birth"... What are you saying exactly Judge? That we should accept everyone born in other countries as Americans.
    Then let us bring in ALL... everyone from any country. I know some Syrians that would like to be here, some Africans, some samoli Christians that fear for their lives. I know hundreds of thousands starving in Haiti... Open our doors wide Judge and watch the Chaos...
    Sincerely
    vicky

  • amerskine||

    Vicky is right and the Judge, as much as we love him, is WRONG here - STOP the misplaced sentimental compassionate conservative crap and FOLLOW THE CONSTITUTION.

  • Alex Scipio||

    Can Obama change federal law?

    Why should he when he can ignore it whenever he wants and Congress does NOTHING to hold him accountable?

    Seriously - WHERE is the lawsuit to challenge him? I expected Boehner to have it on the desk of SCOTUS first thing Monday morning following HRH Obama's DREAM nonsense last Friday.

  • amerskine||

    I agree - WHERE IS CONGRESS AND ESPECIALLY BOEHNER???

  • amerskine||

    Obama should be impeached but our spineless Congress will not begin the issue - AND while I respect Judge Napolitano immensely, I am shocked at his conclusion concerning illegals: "it is unjust to punish children for the behavior of their parents" HAS ABSOLUTELY NOTHING TO DO WITH OUR LAW. It is NOT the job of government to condone illegals breaking our law by helping their children - Our Constitution does NOT say the president can choose NOT to uphold our law because "illegal children were brought here by their parents. Every 20 years some president gives amnesty to ILLEGALS because of some misplaced sentimental nonsense echoed by the Judge here. The USA is a sovereign nation of LAW - illegals must go home and enter our country LEGALLY and anchor babies MUST BE ENDED. Close our border, send illegals and their children home, up the number of legal immigrants who can come in, make the process easier and faster, BUT DO NOT UNDERMINE THE CONSTITUTION. If the USA would enforce the law, this illegal problem would end. Shame on you, Judge. You probably also agree with SCOTUS recent decision on Arizona's laws that undermines Arizona's sovereignty. THE CONSTITUTION nd nothing but the Constitution.

  • josh||

    i've yet to hear any intelligble description of what law obama broke. i've read the law concerning coming into this country illegally and several relevant court rulings, and some other stuff too. there is discretion built into the law, and i've yet to come across anything that says "you must be deported, and that's the only option".

    as jon stewart humorously pointed out, other presidents have done this same thing. it seems a lot of people are talking around the issue.

  • Valboski||

    I have determined that children born in the United States should be granted the same status as their birth mother. This would stop the inflow of illegal alien birth mothers looking to establish "anchor babies". One definitely has less problem establishing residential status of the mother. Once both have reached the point where they are healthy and stable enough, they can be returned to their country of origin.

  • Timely Renewed||

    Would that we could end the expansion of the imperial presidency simply by defeating this arrogant ideologue. Unfortunately, executive power has been expanding far beyond its constitutional bounds since long before B. H. Obama entered the White House. The only permanent solution to not only this law-breaker, but any future executive tempted to follow in his footsteps, is to amend the Constitution to return the President (and the rest of the federal government) back to their original constitutional limits. Of course, the DC elites will never initiate such amendments, so the first step is to reform the amendment process so that the states can initiate and enact amendments without having to go through either Congress or the unworkable and dangerous mechanism of a convention. See http://www.timelyrenewed.com

  • HMHervey||

    Obama’s Fiat on Illegal Immigration is Shameful because it’s a political, social and economic time bomb that threatens the very fabric of American society. READ MORE: http://www.conservativepartyus.....-shameful/

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