Historians will have to judge in the future, but as of now, it appears that Barack Obama has sidestepped, gone through and run over and under the Supreme Law of this land more than any president since our nation was founded.
1. We can begin with the latest embarrassment to the President, the unconstitutional appointment of 3 members of the National Labor Relations Board on January 4, 2012. At that time, the President determined that the Senate was in “recess” and therefore he could make these recess appointments. The fact was that the Senate was not in recess by its own rules and this abuse of power by the President has now been affirmed by a unanimous decision in the D.C. Circuit Court of Appeals (3-0 vote).
The procedure the Senate Republicans used to stay in session has been used by both parties over a long period of time. Every few days there would be a session at which Republican senators would speak in the Senate to keep the session alive. Democrats used that same device when George W. Bush was President. Nevertheless, Obama thought he was above the law and chose to make these appointments anyway.
The danger in Obama’s action is that he violated a fundamental premise of our Constitution: Separation of Powers. Each branch, executive, judicial, and legislative, has the authority to make its own rules and must not interfere with that process. Once we abrogate that process, we are in danger of becoming a tyrannical dictatorship, since the rule of law would no longer prevail. Fortunately, the appeals court received the case and made it clear that this administration had overstepped its bounds. Should the administration appeal and go to the U.S. Supreme Court, we will hopefully get the same result.
There is another case now pending involving the Director of the Consumer Protection Financial Bureau, Richard Cordray. He was appointed on the same day in the same way, and a decision from the federal courts overturning this appointment as well would solidify the fact that the Constitutional Separation of Powers will prevail concerning these alleged recess appointments.
2. A second area that raises serious questions regarding the constitutional authority of the executive branch is the scandal we know as “Fast and Furious.” We now know, without denial from the administration, that automatic weapons in the thousands were facilitated by the Bureau of Alcohol, Tobacco, Firearms and Explosives, to be distributed to dangerous drug cartels in Mexico, including the Sinaloa Cartel. We have emails to Attorney General Holder released by Congressman Darryl Issa showing that a year before Holder admitted to knowing about this outrageous act, he was notified about this activity. He proceeded to withhold documents requested by congressional committees and was cited in a Contempt of Congress action in the House. This was the first time in our history that an attorney general faced a contempt citation from Congress. There were also emails released that proved White House staff received similar emails, however, there is no “smoking gun” that the President knew. Nevertheless, these actions were carried out by an agency of government under the authority of the president, and we have high level officials in the Department of Justice who knew of this activity as well.
We also know that Brian Terry, an Immigration and Customs Enforcement agent was killed in a fire fight with cartel members at the border between Nogales, Arizona and Nogales, Mexico. Near his body were found 2 of the weapons that had been distributed to the cartel as part of “Fast and Furious.”
Constitutional scholars and possible law suits will ultimately instruct us as to whether a sitting president as commander-in-chief can have agencies of his administration distribute automatic weapons to criminal cartels. This is especially troubling since emails between the Phoenix office of BATFE and the D.C. headquarters indicate that the intent of this project was to make the case that long guns in America should have restricted ownership. Hundreds of Mexican lives were lost by the criminal use of these weapons, and many believe that this kind of behavior is beyond the authority of the president.
3. Another area of constitutional concern is the administration policy referred to as “Net Neutrality.”
This is the principle that all internet content should be treated equally by network providers. Do we require this standard of newspapers and other print media? Since the Fairness Doctrine is not in effect for electronic media, do we require that standard for those communication vehicles?
The answer in both cases is no.
Here you have a Federal Communications Commission under Julius Genachowski attempting to place government regulation of the freely operated internet. It is, arguably, a violation of free speech to have government dictate to Internet Service Providers about the content they should disseminate to the public. What happened to the free and open marketplace of ideas? The whole concept of a free society is that different ISPs will have different approaches to the content they distribute and we as end users can pick and choose the ISP best suited for our needs.
The D.C. Circuit Court of Appeals heard the case brought by Comcast to overturn this policy being promulgated by the FCC. In a 3-0 unanimous decision, Judge David S. Tatel (a more liberal member of that Court) wrote the opinion stating that the FCC did not have congressional authority to carry out this policy as a regulation.
The administration was stymied in its attempt to circumvent the Constitutional protections afforded by the First Amendment.
4. Another area of constitutional concern is the latest act of 23 executive orders issued by the president subsequent to the massacre of 20 children and 6 adults in Newtown, Connecticut.
We have seen in recent times several Federal Court decisions regarding the Second Amendment “right to keep and bear arms” validating our ownership of firearms as private citizens. The Supreme Court made this determination in the District of Columbia case and the Seventh Circuit Court of Appeals made a similar determination in the case involving Illinois state law and the Chicago city law. Each of these cases involved the prohibition of ownership of firearms in those jurisdictions. These Courts overturned those laws as being in violation of our Second Amendment rights.
It is particularly troubling that the President again disregards the Constitution and the Congress by issuing executive orders on a subject that is constitutionally protected. It is within the authority of the Congress to pass laws regulating any of our constitutional rights. We do have regulation of protections in the Bill of Rights, but these have been enacted by law and do not violate those rights but place reasonable regulations on their use. The First Amendment, for example, does not include protection for obscenity, false commercial speech, “fighting words,” defamation or “yelling fire in a crowded theatre.” Each of these restrictions on free speech was determined by the United States Supreme Court, and the procedure we have followed on the constitutionality of a law is to have Congress pass the law, then have a legal challenge determine its constitutionality.
Apparently, Barack Obama does not want the interference of this procedure and simply determined on his own to decide what would or would not violate our Second Amendment rights.
There is no doubt that his use of executive orders will be challenged in a legal action, and hopefully, he will again be rebuked by the courts as having overstepped the authority of the executive branch.
The Tea Parties all agree that Constitutional Compliance is a fundamental requirement for public officials. Therefore, Mr. President, please do not apply for admission to any Tea Party as you are imminently unqualified for membership.