Protecting the Constitution from Executive Order

Donald Devine–senior scholar at the Fund for American Studies and Ronald Reagan’s director of the Office of Personnel Management during his first term.–comments in the American Conservative:

President Barack Obama has made it absolutely clear that he will rule by Executive Order for the remainder of his term. Republicans and independents have decried this as an unconstitutional power grab, a usurpation of authority granted by the Constitution to Congress, while Democrats are mostly too embarrassed to defend what they so strongly opposed under George W. Bush and Richard Nixon.

A conservative response should begin by observing that the U.S. Constitution is not as legally neat as the protesters suggest. While most folks focus on the uplifting sentiments of the Bill of Rights to liberty and property, the essential Constitution is all about power and how it is divided. The progressive myth of a legalistic constitution of rights is just that, a fable to cover its own view of political power. The Bill of Rights was not even part of the original document. The fundamental Constitution is outlined in its Articles, dividing power between legislative, executive, judicial, state and amendment institutions. But the boundaries between them are anything but clear.

Abraham Lincoln suspended judicial habeas corpus and controlled speech during the civil war without legal support from Congress and actual opposition from the Supreme Court. The succeeding Reconstruction Congress impeached the president for merely attempting to replace his own cabinet and when unable to convict him made his veto a nullity by strict party rule, rigged voter lists in the South, and effectively unicameralizing the Senate and House under a joint committee of Republican leaders. Andrew Jackson directly refused to implement a Supreme Court decision supporting Cherokee property rights, distaining the court to enforce its ruling if it could because he would not.

Isn’t the Supreme Court supposed to have the last word on these matters? In challenging President Bush’s attempt to replace regional U.S. Attorneys against Congressional opposition in 2006, Democratic Rep. Henry Waxman said such differences between the executive and legislature must be umpired by the courts. He and his classmates were taught in law school that “the Constitution was what the Court said it was.” Bush replied he would not allow his Attorney General to enforce a judicial contempt order even if the court issued one and that was that. More recently, President Obama announced he would not enforce federal anti-drug laws against states with marijuana legalization laws and refused to deport certain illegal immigrants. Back in 1988, Congress passed a Civil Rights Restoration Act specifically nullifying the Grove City Court decision and in 1991 passed a civil rights bill overruling five Supreme Court decisions by name.

Even with their relative decline in recent years, the states are not without redress either, as the marijuana legalization laws demonstrate. . . .