Barack Obama

Congress Unconscionably Silent on Obama's Constitutional Crimes

The president's willingness to violate the Constitution publicly calls into question his fitness for office.


Justin Sloan/Flickr

The political philosopher Edmund Burke once remarked that all that is necessary for the triumph of evil is for good folks to do nothing. A glaring example of the impending triumph of a constitutional evil that could be stopped by folks who have been largely silent is the tyranny coming from the White House. And the folks who can stop this and are doing nothing about it are our elected representatives in Congress.

The Constitution is the supreme law of the land. It established the three branches of government, and it delegated "all legislative powers" to Congress. American law rarely uses the word "all." Yet the Framers chose that word precisely to confine law writing to Congress and to prevent a president from altering federal law by the selective manner of his enforcement of it and thereby effectively rewriting it.

The same Framers sought to guard against the same evils by compelling the president to swear at the commencement of his terms in office that he will "faithfully" enforce the laws. The use of the word "faithfully," like the use of the word "all," is intended to assure voters that they can count on a president who will do the job they hired him to do by enforcing federal laws, not evading them, and by enforcing them as Congress has written them, not as the president might wish them to be.

To be fair, many presidents, from the sainted Thomas Jefferson to the tyrannical Franklin Delano Roosevelt, put their own spin on federal law. Jefferson pardoned all those convicted under the Alien and Sedition Acts because he hated a statute that punished free speech and he boasted that he would not enforce that part of the acts (they expired under his watch). And FDR—when barely two weeks in office—issued an executive order criminalizing the possession of gold because he foolishly thought it would stabilize the banks, until an adviser reminded him that only Congress can write criminal laws (which he then persuaded Congress to do). Yet in President Obama we have a president whose personal interferences in the enforcement of federal laws reveal his view that he can rewrite them and even nullify them.

Presidential law writing violates the presidential oath of office, steals power from Congress, disrespects an equal branch of the government and, when unchecked, accumulates such power in the executive branch that it effectively transforms the president into a menacing tyrant who rejects his constitutional obligations and limitations.

  • Obama bombed Libya without a declaration of war from Congress. This arguably brought down the Gadhafi government, which led to the current state of lawlessness there, which produced the environment in which our ambassador was murdered in Benghazi in 2012 and established a dangerous precedent because Congress remained officially silent.
  • He has told the 11 million illegal immigrants who are here and subject to deportation that if they comply with a new set of rules they will not be deported. The constitutional problem is that the president wrote those rules. Only Congress can craft such rules, and by the president's doing so, he has schooled immigrants in how to avoid compliance with federal law.
  • The president has used drones to kill Americans, but claims he has done so lawfully because he complied with secret rules that he crafted. Under the Constitution, if the president wants someone dead, he must afford the person due process or ask Congress to declare war on the country housing the person. No worries, he says—he has followed the secret rules that he wrote to govern himself when deciding whom to kill.
  • The president's agents now acknowledge that they spy on all of us all the time, including members of the judiciary and Congress. This, too, was done pursuant to a secret presidential directive, secretly approved by judges acting as clerks and not under the Constitution, and by a dozen members of Congress sworn to secrecy. No law authorized this, and the president won't discuss it meaningfully, except to condemn its revelation.
  • And in a series of salvos that hit home, the president has modified the Affordable Care Act (Obamacare) 29 times, by changing its various dates of effectiveness for some but not for others, by changing the meanings of terms for some but not for others, and even by diluting the signature obligation we all have to obtain the platinum insurance policies it commands for some and not for others. He has done all of this on his own, with no input from Congress. He has even threatened to veto any congressional effort to enact into law the very changes he alone has made.

His latest assault on the Constitution consists of a plan by the Department of Homeland Security, revealed earlier this week, effectively to follow us as we drive on public roads by photographing the license plate of all motor vehicles. This, too, was formulated without congressional approval or constitutional authority. [Editor's note: this plan was scrapped under heavy pressure from privacy advocates.]

And while all of this is going on, Congress largely sits as a potted plant. In the Senate, Sens. Rand Paul (R-Ky), Ted Cruz (R-Texas), and Mike Lee (R-Utah) have complained long and loud, but Senate Majority Leader Harry Reid will not permit legislation that addresses presidential lawlessness to reach the Senate floor. A few dozen Republicans in the House have complained, but Speaker John Boehner will not permit the House to address corrective legislation. Institutionally and officially, Congress is sleeping.

Can you imagine how a Democratic Congress would have reacted if Ronald Reagan had instructed the IRS to cease collecting capital gains taxes so as to spur economic activity; or how a Republican Congress would have reacted if Bill Clinton had instructed the IRS to add a one percent rate increase to the tax bills of billionaires so as to close a budget gap?

These are dangerous times because this is a lawless presidency and a pliant Congress. The president's willingness to violate the Constitution publicly calls into question his fitness for office. And that deafening silence from Capitol Hill manifests a spineless refusal to preserve constitutional government.

The whole purpose of dividing and separating governmental powers is the preservation of personal liberty by preventing the accumulation of too much power in one branch or, heaven forbid, in one person. Whoever permits this to take place lacks fidelity to the Constitution, is unworthy of holding governmental power in a free society and should be removed from office.

NEXT: Brickbat: Back to School

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  1. Oh, come on judge, if the house were to impeach, they’d be excoriated as racists, and the senate would refuse to convict anyway, so what’s the point? If a party refuses to hold their guy accountable, it’s all over. Kiss the last vestiges of a republic goodbye.

    1. I don’t see impeachment happening.

      Obama already ‘put it out there’ that race may factor into why people oppose him.

      A despicable chess move on his part but it may play a role into why they won’t impeach.

      1. I basically agree.

        However, what *would* happen if he were impeached? Would the cities burn again like during the Civil Rights riots? Would the Constitution be amended to require only Black Presidents?

        1. I think the cities would burn.

          More importantly I think the black racism that is extant would come out loud and clear from a lot of prominent blacks.

          There is almost no white racism anymore. A few old people, a few people you can find if you dig deep enough. But, practically racism now is the odd snarky comment – which will never go away.

          Black racism though is huge. Many blacks hate whites. Most without reason. If you are over 50, then you might have reason. If you’re under 30, you will have no reason.

      2. He said there were probably people who voted against him because he was black. He also said there are people who probably voted for him because he was black. This was recently. Was there some point where he went further than this and perhaps claimed just about anyone who voted for him was doing so because he was black? Certainly some of his sycophants claimed this.

    2. The Clinton impeachment in its stupidity basically blew up that check/balance for the foreseeable future. If the President can assassinate an American citizen away from a battlefield, refuse to even explain why it was legal, and still not get impeached, then say goodnight Gracie.

      1. Agreed. If he was going to be impeached, it would’ve happened by now. Impeachment is one of those things where you’d better goddamn make it work if you’re gonna start it, or else it’ll blow up in your face. Like you say, case in point: Clinton.

        1. Impeachment is one of those things where you’d better goddamn make it work if you’re gonna start it, or else it’ll blow up in your face.
          Like maybe waiting until after the midterms, when you might possibly have a senate majority leader that would allow a vote on articles of impeachment?

    3. It’s not about fear of race baiting; Republicans have been called racists since Obama was elected.

      The reason congressional Republicans aren’t doing anything is because they are licking their chops in anticipation of the next Republican administration–then they’ll REALLY be able to get things done!

      1. lol was just about to say the very same thing until i read down far enough to see this comment

      2. Most people don’t know about or care about the details of constitutional law. If anyone impeached Obama on the ACA rule changes, they would simply look like they were trying to prevent Obama from fixing the ACA. It wouldn’t matter whether they were right. It would look bad politically.

    4. why does congress need to impeach can’t they take all monies away from the president or by two thirds vote his actions null and void just like a veto vote and if he then does not comply then you impeach him.

      1. They just handed him a blank check. A little too late for defunding his initiatives.

  2. But the Framers didn’t have three things that Obama does: An insubordinate House of Representatives, full knowledge of all things constitutional, and divination.

    1. No, but some of them anticipated such a man would come. Time to bring back John Adams’ proposal for a presidential title: “His highness, the President of the United States of America, and Protector of the Rights of the Same”.

  3. Okay. But is Obama worse than Bush? Is he worse than any other President? Where does he stand on this spectrum of Constitutional abuse?

    Do the unilateral decrees, extensions, and exemptions for his ‘settled law’ piece of legislature Obamacare alone set him apart?

    1. Fair point. He’s issued fewer executive orders than Bush, I believe. But, in Bush’s defense, the worst things that happened during his tenure–the formation of the DHS and the passage of the PATRIOT Act–were conducted within the bounds of Constitutional law. Congress couldn’t vote hard enough in favor of the PATRIOT Act, and the establishment of the Department of Homeland Security was actually a compromise with Dems in Congress.

  4. If a president wants to nullify a law, he can just pardon everybody arrested under said law.

    1. Yes, but he must direct his enforcement agencies to faithfully uphold the law, thereby creating a bureaucratic agency of perpetual motion. Wait a minute…this model could be used to solve all our unemployment and economic problems!

  5. Good article Judge. I realize you are just hitting the high points here. The unlawful acts of this President are too numerous to list in a post like this, but nothing about the bureaucracy run amok under this guy?

    From the IRS using banana republic style tactics on Obama’s political oponents to the EPA, and…oh hell, they are just too numerous to list.

    It looks like the FCC is slobbering all over itself to nationalize the news media. Why do I suspect that you and Reason are on their list of entities that need to be reigned in?

    1. The Republic is dead, and probably has been for a while. It’s like Weekend at Bernie’s. They’re just trotting out this corpse to make it appear that it is alive and well. Truth is, it’s rotting and beyond resuscitation. The stench of its decay fills our nostrils, and still we pretend that we can revive it. Truth be told, it is gone forever. Best to bury it now, and rid ourselves of the pretenders. A new government is our only option if you want to have liberty.

  6. So we effectively live under a dictatorship. Is that what you’re saying, Judge?

    If this were a dictatorship, it would be a heck of a lot easier, just so long as I’m the dictator – Dubya

    1. I mean, if the President just decides which laws get enforced according to his own preferences and sets the rules of his own conduct based again on his own preferences, there’s a good argument to be made along those lines. The executive was never intended to wield the kind of power it currently does. Is that unique to Obama? No, but he provides a splendid example of its particular abuse. If you’re waiting for Mr. Constitutional Law Professor to reign himself in out of some loyalty to the Republic or actual belief in the oath of office he swore, don’t hold your breath.

      1. Or, *rein* himself in, perhaps.

        Damn pre-coffee posting…

        1. Reign was just a Freudian slip.

          You’re excused.

          1. I kind of like ‘reign’ in this instance. As in saying he will stop himself from doing something.

  7. “The political philosopher Edmund Burke once remarked that all that is necessary for the triumph of evil is for good folks to do nothing.”

    There’s a similar quote in the beginning of Boondock Saints. Should have used that reference.

  8. The right has lost all sense of proportion, and it does nobody any good. Now that we’ve defined tyrant down to mean “flexibly executing a healthcare law,” I guess we have to invent a new word for someone who used to be considered an actual tyrant.

    It’s maddening that they’re doing a disservice to informed debate by being so hysterical about everything, and what’s equally maddening is the absolutely obvious fact that none of this has anything to do with concerns about constitutionality or freedom or justice. It’s entirely about fishing for reasons to knock the president down a peg or find a reason to do another jerkoff impeachment. Obama’s primary crime is presidenting while Democrat.

    1. I have yet to see a post from you that involves countering an argument with fact or logic. You’re talking about how “the right” is doing a disservice to informed debate by accusing them of being “hysterical,” which is itself pretty ironic, but is mostly notable for the fact that you fail to directly address any of the points you disagree with.

      A President who selectively enforces laws passed by Congress (that he championed, no less), who reserves or creates powers for his office which have no credible check (such as his drone program, for one), and who has actually come out and said that if Congress won’t pass laws he wants he’ll just ignore them and use executive orders is effectively ruling by fiat, and, in this regard, is no different than a Hugo Chavez, a Fidel Castro, or any other petty dictator with the balls to call himself a “president”. If he doesn’t yet match the criteria for tyranny, which I assume in your book would require the beheading of political foes in a public square, or maybe the slaughter of every male child, he certainly meets those used by the founders of this Republic, whose grievances with King George III were comparable to those many of us have with the Nobel Laureate in Chief.

      Now, you can either dismiss me as hysterical, or, if you have a reasoned and factual argument, you can prove me wrong. I’m guessing you’ll take the former option, being unable to take the latter.

      1. Well he certainly hasn’t surpassed founding father Thomas Jefferson in the deployment of executive power, and he was the one who warned most against it!

        This is for the most part weak tea. I sincerely wish a serious debate could be had about the composition of checks and balances, but this isn’t serious. It’s a list of Republican talking points that exist only for political reasons. They certainly don’t want to actually give up executive authority. They invented the modern version of it!

        As has been noted, Obama has actually been conservative about executive orders relative to other modern presidents. And that’s with the least productive Congress in history (where is the crying about proper implementation of law when they’re spending all their time trying to de-fund one?).

        1. He might have written fewer exec orders, but his have been further reaching. That is the issue. No one cares if an executive order is written clarifying bureaucratic action on a law written by Congress. That is the purpose. It is when an EO is written that subverts the laws written by Congress. That is what he is doing.

          Do you not get any of this? Or, are you so partisan that it overrides your ability to think? Almost no one here is a Republican, by the way. So, your ‘Republican this, Bush that’, etc. falls on deaf ears.

          Even if you said, ‘yeah, he’s bad. I admit it. But, I think Mitt would have been worse.’, that would be reasonable. I don’t agree with it, but it is reasonable. Defending the indefensible though is not even remotely understandable to me.

          1. I don’t think the scope has been anything to wet your pants over either. It’s hard to know what is really going on considering all the criticism of the president that comes from the right is hysterical and full of lies, and it always has been. It undermines the cause, if there is a cause that goes beyond Obama’s poll numbers and the bitterness people still feel that he was elected twice.

            Of course Republicans are going to be worse. They are worse on everything (unless all you care about is lower taxes). They openly disdain the democratic process (most here do too). Whatever problems exist they are not going to go away if Obama just sets a good example. Republicans aren’t interested in constitutionality or freedom, they are interested in their own power. Period. And if I get you guys confused with them it’s because YOU TALK EXACTLY LIKE THEM ALL THE TIME.

            1. I don’t think the scope has been anything to wet your pants over either.

              I mean, what is that serious about war crimes, illegally waging war, spying on the citizenry, unilaterally changing the law and murder?

              Silly Republicans

          2. …”Do you not get any of this?”…

            Tony is a lying, slimy turd who will use every bit of dishonesty to push his agenda.
            He is not as despicable as Stalin or Hitler in that he dose not have control of the guns. If he did, he would drown in the blood of those he murdered.
            There is no redeeming factor in him; the world would be a far better place if his mother had aborted hem.

      2. The fact that Congress will do nothing about it gives tacet consent. It’s not constitutional, but politically it may as well be.


    3. It’s entirely about fishing for reasons to knock the president down a peg or find a reason to do another jerkoff impeachment.

      No its not, jizzmop-for-brains. He assassinated 4 US citizens for the crime of ‘Treason’ when it SPECIFICALLY lays out how such treason is to be tried. Furthermore, one of those who got bombed was a 16-yr old boy who was killed for Treason by Corruption of Blood which is specifically BANNED by the US Constitution. If that does not amount to a High Crime and/or Misdemeanor I’d eat my fucking hat.

      Ya know, Tony, I would not be surprised if Obama appeared in television with the severed head of a child and you would defend him because ‘Well, he’s the POTUS and we should trust him no matter what’.

  9. Poor Judge. It has to suck being one of about two, or three, dozen people still living on Earth who actually get it.

  10. Sorry folks, but “removing” a President of The United States of America from office is not as easy as you think. Looks like you will have to wait until 2016/201, and then you can all decide what you don’t like about Obama’s successor and then yap and yap and yap for the next four years about how to get rid of him/her. So start making a list for the future so you can be ready to rant and rave when the next President of The United States of America takes office in January 2017. Finally, take a course in agitation and propaganda so you can denigrate the next President properly if you don’t like him. This should also give you plenty of time to frame The Constitution in a prominent place in you home with a small altar so you can worship it. I recommend lots of sweet smelling candles and also a framed portrait of the famous painting depicting George Washington being taken to heaven by the angels. Everyone have an absolutely heavenly day. Don’t despair, bright times are coming in 2017. Keep a stiff upper lip and all that.

    1. All these reasons to impeach should be saved for use during the 2016 campaign. I know Obama isn’t running, supporters for the mentality he represents will still be around. I don’t think it would be that tough to link most other Democrats with this.

      1. What “mentality” does he represent? Define your terms please!

  11. If we did get rid of the traitor in chief, doesn’t that mean we get Biden instead? Could that be why no one wants to do it?

    1. Whatever the current President of the United States of American is, he is NOT a “traitor.” If you don’t like him and can’t stand him and all that, it does not mean he is a “traitor”. Quite exaggerating because you don’t like the policies or personalities of someone.

      1. On The Road To Mandalay|2.20.14 @ 3:15PM|#
        “Whatever the current President of the United States of American is, he is NOT a “traitor.””

        Well, I’m not surprised you’re an apologist for a traitor.

  12. effectively to follow us as we drive on public roads by photographing the license plate of all motor vehicles

    If you drive on a toll road, you are getting your license plate photographed. This is how they enforce tolls on vehicles that don’t pay. Public non-toll roads are a different matter.

  13. I’m not excusing Congress, but every time they try to stand up to O the press goes after them big time. The press has been compliant.

    The only option is impeachment and removal. And, Congress won’t do that. I’m not even certain that wouldn’t cause rioting in the streets. We should be rioting that he hasn’t been impeached, but the progletariat won’t see it that way.

    If the drone kills haven’t caused impeachment then I doubt anything will be done until O has left the White House.

  14. Read my comments again. The President is NOT going to be impeached any time soon. What press are you talking about? The overpaid ass holes at MSNBC or the overpaid assholes over at Fox News? CNN? They are all “propaganda pimps”. Good luck on trying to find honest news these days, anywhere. If you don’t like Obama or “his type” than vote for someone else in 2016, which you will obviously do anyone. Good luck.

  15. He was a constitutional law Professor at U of Chicago! That doesn’t speak well for con law professors or the university.

    1. I see. And I take it that you are an expert (and genius) on Constitutional Law? Maybe you should run for President of The United States.

      1. On The Road To Mandalay|2.20.14 @ 4:54PM|#
        “I see. And I take it that you are an expert (and genius) on Constitutional Law? Maybe you should run for President of The United States.”

        Did you have a point, or are you just frothing at the mouth?

    2. The fact that Big O was ever employed as a lecturer in Constitutional Law tells us everything we need to know about why the country is in its current mess. Seriously, letting Obama give lectures in Constitutional law is a lot like hiring a Young Earth Creationist to teach evolutionary biology.

  16. Um… because Congress doesn’t care. Democrats don’t care because, well, it’s a Democrat in office. Republicans don’t care (while some will screech about it) because, eventually, a Republican will be in office doing the exact same thing (when some easily-discounted number of Democrats will screech). It’s a bipartisan screwing of the Constitution.

    There is simply no upside in starting any sort of impeachment proceeding against a sitting president. Historically, those have gone badly for the opposition party. Impeachment is easily spun to be a politically-motivated campaign and good luck getting any sort of support from the governing party (see the proceedings against Andrew Johnson and Bill Clinton).

    While impeachment proceedings CAN be used by a Congress looking at the long view and hoping to gain some power back from the Executive, that doesn’t seem to be an actual concern of our congress-critters. People in Congress DO NOT want power; that means they have to explain things they do to voters back home rather than running on platitudes. It’s easier to just pass a couple vague and badly-written laws every so often and complain about how the President is executing them unconstitutionally.

  17. Mr.Mandalay: Perhaps you missed the irony of my comment. As a former con law professor, you would think that Obama would have more appreciation for constitutional principles, and specifically, limits on executive power – but he is just like every power hungry politician. The Constitution is just an impediment to sidestep.

  18. The problem with impeaching Obama is that the people who want him impeached did nothing when GWB was doing the same thing. You can’t stand on principal when it is obvious you don’t have any.

  19. The fact that Congress will do nothing about it gives tacet consent. It’s not constitutional, but politically it may as well be.

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