“If the President Can Change Some Laws, Can He Change All Laws?”


If there’s a man I don’t ever want to be questioned by, it’s Rep. Trey Gowdy from South Carolina. Gowdy was a federal prosecutor for six years, and it shows. When he cross-examines someone who has been hauled in front of Congress, you can’t help feeling just a little bad for them. Even when they deserve it.

Sometimes, though, I can’t drum up any sympathy for the targets of Gowdy’s razor tongue. Especially when it’s President Obama.

On Wednesday, the House of Representatives passed the “Enforce the Law” act, a piece of legislation that Rep. Gowdy wrote. The legislation specifically targets President Obama’s tendency to disregard the Constitutional powers of the Legislative Branch. It has become increasingly clear that this “Constitutional scholar” has no respect for the separation of powers intended by the Founding Fathers. Or, for that matter, the rule of law. These transgressions by the president against the intended operation of the American government have become increasingly public, and defiant.

Last November in Forbes, M. Northrop Bruechner, an Associate Professor of Economics at St. John’s University, New York, wrote:

Since President Obama signed the Affordable Care Act into law, he has changed it five times. Most notably, he suspended the employer mandate last summer. This is widely known, but almost no one seems to have grasped its significance.

The Constitution authorizes the President to propose and veto legislation. It does not authorize him to change existing laws. The changes Mr. Obama ordered in Obamacare, therefore, are unconstitutional. This means that he does not accept some of the limitations that the Constitution places on his actions. We cannot know at this point what limitations, if any, he does accept.

By changing the law based solely on his wish, Mr. Obama acted on the principle that the President can rewrite laws and—since this is a principle—not just this law, but any law. After the crash of Obamacare, many Congressmen have implored the President to change the individual mandate the same way he had changed the employer mandate, that is, to violate the Constitution again.

The main responsibility the Constitution assigns to the President is to faithfully execute the Laws. If the President rejects this job, if instead he decides he can change or ignore laws he does not like, then what?

The time will come when Congress passes a law and the President ignores it. Or he may choose to enforce some parts and ignore others (as Mr. Obama is doing now). Or he may not wait for Congress and issue a decree (something Mr. Obama has done and has threatened to do again).

Mr. Obama has not been shy about pointing out his path. He has repeatedly made clear that he intends to act on his own authority. “I have the power and I will use it in defense of the middle class,” he has said. “We’re going to do everything we can, wherever we can, with or without Congress.” There are a number of names for the system Mr. Obama envisions, but representative government is not one of them.

But President Obama hasn’t put on the brakes. In this year’s State of the Union address, the president made his disregard for the checks and balances of government power clear:

[W]hat I offer tonight is a set of concrete, practical proposals to speed up growth, strengthen the middle class, and build new ladders of opportunity into the middle class.  Some require Congressional action, and I’m eager to work with all of you.  But America does not stand still – and neither will I.  So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do.

This line brought the Democrats in Congress to their feet in raucous applause. The president may be in the same party, and he may share their political philosophy, but he was setting a precedent at their expense: that the Executive Branch should be able to run roughshod over the Legislative, and do so with impunity. (I can’t help but wonder how they will feel when they find themselves on the receiving end of such action from a president they oppose?)

Emboldened by their support, perhaps, or simply his own hubris, President Obama decided to cross the line again. In a cabinet meeting last month, he said:

Congress is going to be busy, and I’m looking forward to working with Democrats and Republicans, House members and Senate members, to try to continue to advance the economic recovery and to provide additional ladders of opportunity for everybody.  But one of the things that I’ll be emphasizing in this meeting is the fact that we are not just going to be waiting for a legislation in order to make sure that we’re providing Americans the kind of help that they need.  I’ve got a pen and I’ve got a phone — and I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward…

Enter Trey Gowdy’s “Enforce the Law” act (H.R. 4138). The official summary of the bill is as follows:

Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law Act of 2014 or the ENFORCE the Law Act of 2014 – Authorizes either chamber of Congress, upon adoption of a resolution declaring that the President or any officer or employee of the United States has established or implemented a policy, practice, or procedure to refrain from enforcing, applying, following, or administering any federal statute, rule, regulation, program, policy, or other law in violation of the constitutional requirement that the President faithfully execute the laws of the United States, to bring a civil action for a declaratory judgment to that effect.

Grants jurisdiction to a three-judge panel of a U.S. district court to hear such civil action and provides for an expedited direct appeal to the U.S. Supreme Court.

On the occasion of the passage, Rep. Gowdy spoke passionately about the purpose of the legislation. I wonder if so rousing a speech on the separation of powers has been heard since the days of our founders:

Here’s an excerpt:

We are not held in high public esteem right now. Maybe members of Congress would be respected more if we respected ourselves enough to require that when we pass something, it be treated as law. Maybe we would be more respected if we had a firmly rooted expectation that when we pass something as law, it be treated as law. Maybe we would be more respected if we put down party labels and a desire to keep or retain or acquire gavels, and picked up the history, the tradition, and the honor of this, the people’s house. Mister speaker, the House of Representatives does not exist to pass suggestions. We do not exist to pass ideas. We make law. And while you are free to stand and clap when any president comes into this hallowed chamber and promises to do it with or without you, I will never stand and clap. When any president, no matter whether it’s your party or mine, promises to make us a constitutional anomaly or an afterthought. We make law!

This is what a man of principle sounds like. It’s not about parties or ideologies, but respect for the Constitution and the rule of law. The checks and balances on political power exist for a very good reason, and we should not sit idly by while they are overrun.

No less an authority on American Government than George Washington stated clearly why such restraints were put in place:

Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.

Many of the greatest turning points in history have come when people were moved to consider the words of great leaders in speeches like Trey Gowdy’s.

Let’s hope that this is one of those moments.

The views expressed here are those of the author, and do not necessarily represent the views of CatholicVote.org


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