Our Voice

Federalism and the Separation of Powers

THE WORST LEGACY OF THE OBAMA ADMINISTRATION MAY BE DISDAIN FOR THE CONSTITUTION’S SEPARATION OF POWERS

So said Appellate and Constitutional Law layers in Washington, D.C. David Rivkin, Jr. and Elizabeth Price Foley.  I agree.  Do you?

President Obama’s actions, Rivkin and Foley go onto say, have created dangerous stress fractures in our Constitutional architecture.  That of course makes it most imperative that President Trump and his administration and the Republican Congress change much of Obama’s ways, and change back to original Constitutionalism.

Recall my fellow Americans that our beloved Constitution separates POWER in the United States by apportioning that power between the three branches of the federal government (Presidential-Congressional-Judicial) on the one hand and among the states on the other.  That of course is the real principle of federalism.  James Madison, a founding father wrote in the federalist papers that such separation of powers creates “a double security” for liberty.  The principle, said Madison, of different governments will control each other, at the same time that each will be controlled by itself.  In short, for liberty to thrive, there must be check and balance among all powers, including a check and balance between the three federal branches of power and of course the powers granted to and reserved by the states, which at that time were 13 (now of course 50).  If those powers become constitutionally imbalanced, the liberties our founding fathers wished more than anything to preserve become endangered.

The Obama Administration says Rivkin and Foley have “spurned this core Constitutional principle.”  Then President Obama aggrandized executive power at the expense of Congress and the states.  The Obama Administration and our former President rewrote the laws and disregarded the Constitutional duty to faithfully execute them.  The infamous Obama PEN AND PHONE literally rewrote the Constitution.

With regard to ObamaCare, Obama without compunction delayed statutory deadlines.  The former President extended tax credits to groups Congress never intended.  Obama and company exempted unions from fees.  The former President and the agency Health and Human Services (HSS) expanded hardship waivers beyond even recognition and even created certain preferences for certain employers.  In short, Obama twisted ObamaCare to suit his own purposes and utterly ignored Congress in the process.  Obama even usurped Congress power of the purse, spending billions for cost sharing subsidies that pay ObamaCare insurers for subsidizing deductibles and copays.  In the process, Obama and HSS shifted monies which were then appropriated for other purposes.  His actions were so egregious that the House of Representatives even sued to defend its Constitutional prerogatives (the power of the purse) which caused the federal courts to rule against the administration, but too little too late.

The Obama Presidency, in an attempt to permanently change the balance of power and elevate the Presidency, issued Executive Orders which exempted five million illegal immigrants from being deported.  That so even though Congress had unequivocally declared that all such illegals were in fact eligible for deportation.  Not done, Obama waived the mandatory work requirement of the 1996 welfare reform.  In his infinite wisdom, he redefined sexual discrimination under Title IX, forcing schools to allow transgender students to use bathrooms of their non-biological gender and threatened to withdraw funds if colleges refused to reduce any due process protections for individuals accused of sexual assault!  This power hungry President ran roughshod over the Constitution any time and in any way he could.

Obama in unconstitutionally elevating the Presidency exhibited a particular disdain for the United States Senate and its advice and consent duty.  With impunity, Obama made unilateral appointments to the National Labor Relations Board (NLRB) while the Senate was in session and perhaps the most unconstitutional and worst decision Barack Hussein Obama made was to UNILATERALLY commit our great nation to a most unpopular nuclear treaty with Iran utterly bypassing the Senate’s treaty ratification power.  Obama did whatever he wanted with that horrendously unconstitutional PEN AND PHONE.

President Barack Hussein Obama struck serious blows at the states and consequently federalism.  The Obama EPA rewrote the 1970 Clean Air Act by ordering states to revamp electricity generation and the power distribution infrastructure.  The Obama EPA also rewrote the 1972 Clean Water Act, claiming vast new power to regulate ditches and streams under the notion that they are “navigable waters.”  Those acts of Presidential commission were followed by other acts of omission.  Obama and our various agencies refused to enforce existing federal drug laws which at least indirectly empowered states to legalize the use of marijuana.  The Obama Administration in so many ways would be characterized, the true legacy of the man with which he was almost obsessed, by indeed a Presidential disdain for the separation of powers.

The Obama Administration was emboldened and enabled by the media an academia.  They encouraged the former President’s unconstitutional behavior simply because they supported its politics and policy agenda.  In the face of that usurpation of power, the Framers of the Constitution expected members of Congress to jealously defend Congressional power against executive encroachment, even if that President came from the very same political party.  Control, said the Framers, the unconstitutional and egocentric ambition of any President.  They forgot the words of Founder James Madison who said:

“Ambition must be made to counteract ambition.
The interest of the man must be connected with the Constitutional Rights of the place.”

The Founder so feared a runaway President, egocentric and narcissistic, ambitious to the extreme like Franklin Delano Roosevelt (FDR) and Barack Hussain Obama that they charged the Congress with protecting and defending the balance of powers.

Obama was so aloof and independent that, in his 2014 State of the Union Address, he said that he would implement his agenda:

“Wherever and whenever I can.”

And of course without Congressional involvement.  The Democrats in the audience, sycophants to the core, erupted in thunderous applause.  And as a result, in November 2014, Democratic Senators urged the President to vastly expand his unilateral amnesty for illegal immigrants!

Incredible Presidential precedent was set.  There now exists serious Presidential overreach and the out-of-control presumed Presidential power to issue Executive Orders to the disregard of Congress.  Now comes President Donald John Trump, a man as private citizen so very accustomed to issue private Presidential orders who can himself continue this disastrous, unconstitutional Presidential process.  But Trump and the Republicans in control of both House and Senate must restore the balance of powers, the separation of powers and provide a new and returned respect for the states and federalism.  Trump can start, as he has, by rescinding much of the Obama Administration’s unconstitutional Executive Orders.  But that is only a beginning.  The United States Congress must step up and introduce by legislation vitally necessary reforms.  That can be done in the following ways.

FIRST, Congress should amend the 1996 Congressional Review Act so that it would require affirmative approval of major Executive Branch regulations. The law now allows regulations to go into effect automatically if Congress does not disapprove them.  In essence, the law allows the President to do as he wishes for he himself can veto any congressional attempt to disavow his Executive Orders.  But the law should be changed so that if Congress does not affirmatively approve a regulation, it never goes into effect.

SECOND, Congress should prohibit what is known as CHEVRON DEFERENCE.  That so called doctrine allows federal courts to defer to the Executive Branch (President) and his interpretation of ambiguous statutes.  If Congress would negate such deference, it can at the same time reduce Executive Power and encourage itself to legislate with far greater specificity.  Much legislation is gray, general and ambiguous so as to be appropriate for the times.  Any autocratic President can take advantage of that ambiguity and essentially issue Executive Orders as he wishes.  Legislative specificity can put an end to that.

THIRD, Congress can and should expand the contempt power granted to the Congress by the Constitution.  The criminal contempt statute should require the U.S. Attorney (Attorney General) to convene a grand jury upon referral by the HOUSE OR SENATE without exercising prosecutorial discretion.  Congress could also extend the civil contempt statute to the House, not merely the Senate and enact a new law specifying a process for using the longstanding but rarely invoked inherent contempt authority and truly enforce it.  That would be an excellent check and balance and curbing of runaway Executive Power.

FOURTH, Congress can and should require that all major international commitments be formulated as a TREATY, an international one, which would require the approval and ratification by the U.S. Senate.  In short, no major international commitment with any other nation should be unilaterally accomplished by a President, but only with, as a treaty, the advice and consent of the Senate.  The domestic Obama pen and phone have extended themselves to international matters, further disdain of the Senate and the Constitution.  Such an unambiguous requirement would not only provide clarification to the judiciary, but it would also encourage communication and negotiation between Congress and the President.

FIFTH, Congress should enact a law which restricts the President’s ability to coerce states into adopting federal policies or threatening states who do not with the elimination of federal funding.  Such a law would not only provide clear guidelines for the states and the judiciary, but as well reinvigorate a solid commitment to Constitutionalism and Federalism.

Restoring and respecting the separation of powers is absolutely necessary and possible for the survival of our Constitutional and Democratic way of life.  Scholars, politicians and even right-thinking academics regard that as the highest priority of the Trump Administration and the Republican Congress.

That most serious priority depends to a great extent on new President Trump.  Trump may in fact wield the very same Presidential power so greatly expanded as Obama.  Trump himself may carry the issuing of Executive Orders to the next level.  Trump has potentially signaled that he will work with Congress provided that he, like Obama, gets what he wants.  Trump may have his own PEN AND PHONE and ignore like Obama the Congress and defy the courts.  If so, the Constitution will be at even further risk of deterioration and disrespect.  But hopefully, Trump and his advisors will understand how government should really work, introduce a new respect for the Constitution and return our country to a firm system of Constitutional check and balance on the one hand and separation of powers on the other.

Only time will tell!