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News & Politics News & Politics

Stopping a lawless president

Posted by on Jun. 23, 2014 at 2:51 PM
  • 55 Replies

What philosopher Harvey Mansfield calls “taming the prince” — making executive power compatible with democracy’s abhorrence of arbitrary power — has been a perennial problem of modern politics. It is now more urgent in the United States than at any time since the Founders, having rebelled against George III’s unfettered exercise of “royal prerogative,” stipulated that presidents “shall take care that the laws be faithfully executed.”

Serious as are the policy disagreements roiling Washington, none is as important as the structural distortion threatening constitutional equilibrium. Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity and qualitatively different.

Regarding immigration, health care, welfare, education, drug policy and more, Obama has suspended, waived and rewritten laws, including theAffordable Care Act. It required the employer mandate to begin this year. But Obama wrote a new law, giving to companies of a certain size a delay until 2016 and stipulating that other employers must certify they will not drop employees to avoid the mandate. Doing so would trigger criminal perjury charges; so he created a new crime, that of adopting a business practice he opposes.

Presidents must exercise some discretion in interpreting laws, must havesome latitude in allocating finite resources to the enforcement of laws and must have some freedom to act in the absence of law. Obama, however, has perpetrated more than 40 suspensions of laws. Were presidents the sole judges of the limits of their latitude, they would effectively have plenary power to vitiate the separation of powers, the Founders’ bulwark against despotism.

Congress cannot reverse egregious executive aggressions such as Obama’s without robust judicial assistance. It is, however, difficult to satisfy the criteria that the Constitution and case law require for Congress to establish “standing” to seek judicial redress for executive usurpations injurious to the legislative institution .

Courts, understandably fearful of being inundated by lawsuits from small factions of disgruntled legislators, have been wary of granting legislative standing. However, David Rivkin, a Washington lawyer, and Elizabeth Price Foley of Florida International University have studied the case law and believe that standing can be obtained conditional on four things:

That a majority of one congressional chamber explicitly authorizes a lawsuit. That the lawsuit concern the president’s “benevolent” suspension of an unambiguous provision of law that, by pleasing a private faction, precludes the appearance of a private plaintiff. That Congress cannot administer political self-help by remedying the presidential action by simply repealing the law. And that the injury amounts to nullification of Congress’s power.

Hence the significance of a House lawsuit, advocated by Rivkin and Foley, that would unify fractious Republicans while dramatizing Obama’s lawlessness. The House would bring a civil suit seeking a judicial declaration that Obama has violated the separation of powers by effectively nullifying a specific provision of a law, thereby diminishing Congress’s power. Authorization of this lawsuit by the House would give Congress “standing” to sue.

Congress’s authorization, which would affirm an institutional injury rather than some legislators’ personal grievances, satisfies the first criterion. Obama’s actions have fulfilled the rest by nullifying laws and thereby rendering the Constitution’s enumeration of Congress’s power meaningless.

The House has passed a bill sponsored by Rep. Trey Gowdy (R-S.C.) that would guarantee expedited consideration by federal courts of House resolutions initiating lawsuits to force presidents to “faithfully execute” laws. But as a bill, it is impotent unless and until Republicans control the Senate and a Republican holds the president’s signing pen.

Some say the judicial branch should not intervene because if Americans are so supine that they tolerate representatives who tolerate such executive excesses, they deserve to forfeit constitutional government. This abstract doctrine may appeal to moralists lacking responsibilities. For the judiciary, it would be dereliction of the duty to protect the government’s constitutional structure. It would be perverse for courts to adhere to a doctrine of congressional standing so strict that it precludes judicial defense of the separation of powers.

Advocates of extreme judicial quietism to punish the supine people leave the people’s representatives no recourse short of the extreme and disproportionate “self help” of impeachment. Surely courts should not encourage this. The cumbersome and divisive blunderbuss process of impeachment should be a rare recourse. Furthermore, it would punish a president for anti-constitutional behavior but would not correct the injury done to the rule of law.

Surely the Republican House majority would authorize a lawsuit. And doing so would establish Speaker John Boehner (R-Ohio) as the legislature’s vindicator.

by on Jun. 23, 2014 at 2:51 PM
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Replies (1-10):
Billiejeens
by Ruby Member on Jun. 23, 2014 at 5:01 PM

The House has passed a bill sponsored by Rep. Trey Gowdy (R-S.C.) that would guarantee expedited consideration by federal courts of House resolutions initiating lawsuits to force presidents to “faithfully execute” laws. But as a bill, it is impotent unless and until Republicans control the Senate and a Republican holds the president’s signing pen.

Some say the judicial branch should not intervene because if Americans are so supine that they tolerate representatives who tolerate such executive excesses, they deserve to forfeit constitutional government. This abstract doctrine may appeal to moralists lacking responsibilities. For the judiciary, it would be dereliction of the duty to protect the government’s constitutional structure. It would be perverse for courts to adhere to a doctrine of congressional standing so strict that it precludes judicial defense of the separation of powers.

1stmuslimah
by Gold Member on Jun. 23, 2014 at 10:45 PM

 and stipulating that other employers must certify they will not drop employees to avoid the mandate. Doing so would trigger criminal perjury charges; so he created a new crime, that of adopting a business practice he opposes.

I would like to know how he thinks he can go about enforcing this. Having have fired or "laid off" many people myself over the years it is not hard to come up with a reason.

grandmab125
by Platinum Member on Jun. 23, 2014 at 11:05 PM
4 moms liked this

 The libs scream Bush should be tried for war crimes.  Well I say, once we control the House, Senate and Presidency, Obama should be tried for crimes to humanity, fraud, lying, etc.  Then lock his sorry ass in a Federal prison for the next 20 years.  Oh, and while they are at it, they can prosecute Holder too.  They can share a cell together.

Quoting Billiejeens:

The House has passed a bill sponsored by Rep. Trey Gowdy (R-S.C.) that would guarantee expedited consideration by federal courts of House resolutions initiating lawsuits to force presidents to “faithfully execute” laws. But as a bill, it is impotent unless and until Republicans control the Senate and a Republican holds the president’s signing pen.

Some say the judicial branch should not intervene because if Americans are so supine that they tolerate representatives who tolerate such executive excesses, they deserve to forfeit constitutional government. This abstract doctrine may appeal to moralists lacking responsibilities. For the judiciary, it would be dereliction of the duty to protect the government’s constitutional structure. It would be perverse for courts to adhere to a doctrine of congressional standing so strict that it precludes judicial defense of the separation of powers.

 

1stmuslimah
by Gold Member on Jun. 24, 2014 at 12:17 AM

 I agree and I wish for them both to be charged. Bush most defiantly for war crimes and Obama for all the stupid stunts he has taken upon him self to pull over. I don't know for sure that Obama has committed a war crime, maybe trading that traitor with out the approval of congress could be a war crime (don't know) but if they can find one then add it to the charges.

Problem is I doubt it will ever happen. After all this time and Bush has not been charged yet and it is never even spoken of, it's not going to happen now and for some unknown reason Obama appears to be untouchable no matter what he does .

I think the history made of the first elected black president is too important to allow his legacy to be tainted.

Quoting grandmab125:

 The libs scream Bush should be tried for war crimes.  Well I say, once we control the House, Senate and Presidency, Obama should be tried for crimes to humanity, fraud, lying, etc.  Then lock his sorry ass in a Federal prison for the next 20 years.  Oh, and while they are at it, they can prosecute Holder too.  They can share a cell together.

Quoting Billiejeens:

The House has passed a bill sponsored by Rep. Trey Gowdy (R-S.C.) that would guarantee expedited consideration by federal courts of House resolutions initiating lawsuits to force presidents to “faithfully execute” laws. But as a bill, it is impotent unless and until Republicans control the Senate and a Republican holds the president’s signing pen.

Some say the judicial branch should not intervene because if Americans are so supine that they tolerate representatives who tolerate such executive excesses, they deserve to forfeit constitutional government. This abstract doctrine may appeal to moralists lacking responsibilities. For the judiciary, it would be dereliction of the duty to protect the government’s constitutional structure. It would be perverse for courts to adhere to a doctrine of congressional standing so strict that it precludes judicial defense of the separation of powers.

 

 

143myboys9496
by Gold Member on Jun. 24, 2014 at 12:36 AM
5 moms liked this

Stopping this lawless POTUS is like trying to wipe up the ocean with a paper towel.

blondekosmic15
by Blonde on Jun. 24, 2014 at 12:46 AM
1 mom liked this

Yes, Obama deserves to face the justice system. The very system he manipulates and believes he's above reproach. Holder should also be prosecuted and sentenced but sharing a cell with Obama, a luxury neither deserve. 

Quoting grandmab125:

 The libs scream Bush should be tried for war crimes.  Well I say, once we control the House, Senate and Presidency, Obama should be tried for crimes to humanity, fraud, lying, etc.  Then lock his sorry ass in a Federal prison for the next 20 years.  Oh, and while they are at it, they can prosecute Holder too.  They can share a cell together.

Quoting Billiejeens:

The House has passed a bill sponsored by Rep. Trey Gowdy (R-S.C.) that would guarantee expedited consideration by federal courts of House resolutions initiating lawsuits to force presidents to “faithfully execute” laws. But as a bill, it is impotent unless and until Republicans control the Senate and a Republican holds the president’s signing pen.

Some say the judicial branch should not intervene because if Americans are so supine that they tolerate representatives who tolerate such executive excesses, they deserve to forfeit constitutional government. This abstract doctrine may appeal to moralists lacking responsibilities. For the judiciary, it would be dereliction of the duty to protect the government’s constitutional structure. It would be perverse for courts to adhere to a doctrine of congressional standing so strict that it precludes judicial defense of the separation of powers.

 


grandmab125
by Platinum Member on Jun. 24, 2014 at 1:02 AM

 

Quoting 1stmuslimah:

 I agree and I wish for them both to be charged. Bush most defiantly for war crimes and Obama for all the stupid stunts he has taken upon him self to pull over. I don't know for sure that Obama has committed a war crime, maybe trading that traitor with out the approval of congress could be a war crime (don't know) but if they can find one then add it to the charges.

Problem is I doubt it will ever happen. After all this time and Bush has not been charged yet and it is never even spoken of, it's not going to happen now and for some unknown reason Obama appears to be untouchable no matter what he does .

I think the history made of the first elected black president is too important to allow his legacy to be tainted.

Quoting grandmab125:

 The libs scream Bush should be tried for war crimes.  Well I say, once we control the House, Senate and Presidency, Obama should be tried for crimes to humanity, fraud, lying, etc.  Then lock his sorry ass in a Federal prison for the next 20 years.  Oh, and while they are at it, they can prosecute Holder too.  They can share a cell together.

Quoting Billiejeens:

The House has passed a bill sponsored by Rep. Trey Gowdy (R-S.C.) that would guarantee expedited consideration by federal courts of House resolutions initiating lawsuits to force presidents to “faithfully execute” laws. But as a bill, it is impotent unless and until Republicans control the Senate and a Republican holds the president’s signing pen.

Some say the judicial branch should not intervene because if Americans are so supine that they tolerate representatives who tolerate such executive excesses, they deserve to forfeit constitutional government. This abstract doctrine may appeal to moralists lacking responsibilities. For the judiciary, it would be dereliction of the duty to protect the government’s constitutional structure. It would be perverse for courts to adhere to a doctrine of congressional standing so strict that it precludes judicial defense of the separation of powers.

 

 

 

1stmuslimah
by Gold Member on Jun. 24, 2014 at 1:15 AM

 It wont happen. USA is too proud that they have made history and elected the first black president and they will not let the accomplishment of a history making moment to be tainted by tainting his legacy. He is going to go down in history as a hero.

When I think about it all and think that if it had gone the other way and we were stuck Romney that too could have been very dangerous. Just the thought is terrifying. It could never make me support Obama because I don't like that. I don't choose "the lesser of 2 evils". I am sure with in a week of his inauguration USA would have been on their way to 3 or 4 wars. He was itching to get elected and wage war.

The whole thing was a lose lose situation from the start.

Quoting blondekosmic15:

Yes, Obama deserves to face the justice system. The very system he manipulates and believes he's above reproach. Holder should also be prosecuted and sentenced but sharing a cell with Obama, a luxury neither deserve. 

Quoting grandmab125:

 The libs scream Bush should be tried for war crimes.  Well I say, once we control the House, Senate and Presidency, Obama should be tried for crimes to humanity, fraud, lying, etc.  Then lock his sorry ass in a Federal prison for the next 20 years.  Oh, and while they are at it, they can prosecute Holder too.  They can share a cell together.

Quoting Billiejeens:

The House has passed a bill sponsored by Rep. Trey Gowdy (R-S.C.) that would guarantee expedited consideration by federal courts of House resolutions initiating lawsuits to force presidents to “faithfully execute” laws. But as a bill, it is impotent unless and until Republicans control the Senate and a Republican holds the president’s signing pen.

Some say the judicial branch should not intervene because if Americans are so supine that they tolerate representatives who tolerate such executive excesses, they deserve to forfeit constitutional government. This abstract doctrine may appeal to moralists lacking responsibilities. For the judiciary, it would be dereliction of the duty to protect the government’s constitutional structure. It would be perverse for courts to adhere to a doctrine of congressional standing so strict that it precludes judicial defense of the separation of powers.

 

 

turtle68
by Member on Jun. 24, 2014 at 2:59 AM
3 moms liked this

Ah well I suppose having the majority of the US population vote him in ...TWICE must of been a gut wrenching day...s... for y'all.  LMAO.  I wonder if your lives are less than before he came into power....TWICE. 

go non-descript man and the intellectual Palin....oh oh no waaaait, sorry wrong year

go the mormon...oh shit, got it wrong again..

maybe the next one....LMAO, just joking...we all no that Hilary is going to win.


Billiejeens
by Ruby Member on Jun. 24, 2014 at 6:56 AM

 

Quoting grandmab125:

 

Quoting 1stmuslimah:

 I agree and I wish for them both to be charged. Bush most defiantly for war crimes and Obama for all the stupid stunts he has taken upon him self to pull over. I don't know for sure that Obama has committed a war crime, maybe trading that traitor with out the approval of congress could be a war crime (don't know) but if they can find one then add it to the charges.

Problem is I doubt it will ever happen. After all this time and Bush has not been charged yet and it is never even spoken of, it's not going to happen now and for some unknown reason Obama appears to be untouchable no matter what he does .

I think the history made of the first elected black president is too important to allow his legacy to be tainted.

Quoting grandmab125:

 The libs scream Bush should be tried for war crimes.  Well I say, once we control the House, Senate and Presidency, Obama should be tried for crimes to humanity, fraud, lying, etc.  Then lock his sorry ass in a Federal prison for the next 20 years.  Oh, and while they are at it, they can prosecute Holder too.  They can share a cell together.

Quoting Billiejeens:

The House has passed a bill sponsored by Rep. Trey Gowdy (R-S.C.) that would guarantee expedited consideration by federal courts of House resolutions initiating lawsuits to force presidents to “faithfully execute” laws. But as a bill, it is impotent unless and until Republicans control the Senate and a Republican holds the president’s signing pen.

Some say the judicial branch should not intervene because if Americans are so supine that they tolerate representatives who tolerate such executive excesses, they deserve to forfeit constitutional government. This abstract doctrine may appeal to moralists lacking responsibilities. For the judiciary, it would be dereliction of the duty to protect the government’s constitutional structure. It would be perverse for courts to adhere to a doctrine of congressional standing so strict that it precludes judicial defense of the separation of powers.

 

 

 

 

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