A Lone Wolf President

When the president effectively writes the laws, Congress is effectively neutered.

The Essence of Liberty: Volume III: A Universal Philosophy of Political Economy (Liberty: A Universal Political Ethic) (Volume 3)So whose fault is that? (As the cold dead fingers crowd continues to pine around the campfire with a puzzled look on their faces.)

by Andrew P. Napolitano via LewRockwell.com

The Essence of Liberty: Volume I: Liberty and History: The Rise and Fall of the Noble Experiment with Constitutionally Limited Government (Liberty and ... Limited Government) (Volume 1)Can the president rewrite federal laws? Can he alter their meaning? Can he change their effect? These are legitimate questions in an era in which we have an unpopular progressive Democratic president who has boasted that he can govern without Congress by using his phone and his pen, and a mostly newly elected largely conservative Republican Congress with its own ideas about big government.

The Essence of Liberty: Volume II: The Economics of Liberty (Volume 2)These are not hypothetical questions. In 2012, President Obama signed executive orders that essentially said to about 1.7 million unlawfully present immigrants who arrived in the U.S. before their 16th birthdays and who are not yet 31 years of age that if they complied with certain conditions that he made up out of thin air they will not be deported.

Environmental & Natural Resource Economics: The Austrian ViewIn 2014, the president signed additional executive orders that essentially made the same offer to about 4.7 million unlawfully present immigrants, without the age limits that he had made up out of thin air. A federal court enjoined enforcement of the 2014 orders last month.

The Betrayed: On Warriors, Cowboys and Other MisfitsLast week, the Federal Communications Commission — the bureaucrats appointed by the president who regulate broadcast radio and television — decreed that it has the authority to regulate the Internet, even though federal courts have twice ruled that it does not.

Combat Shooter's HandbookAlso last week, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, whose director is appointed by the president, proposed regulations that would outlaw the only mass-produced bullets that can be fired from an AR-15 rifle. This rifle has been the target of the left for many years because it looks like a military weapon; yet it is a lawful and safe civilian rifle commonly owned by many Americans.

A Handbook for Ranch Managers Planned Grazing: A Study Guide and Reference Manual This week, the president’s press secretary told reporters that the president is seriously thinking of signing executive orders intended to raise taxes on corporations by directing the IRS to redefine tax terminology so as to increase corporate tax burdens. He must have forgotten that those additional taxes would be paid by either the shareholders or the customers of those corporations, and those shareholders and customers elected a Congress they had every right to expect would be writing the tax laws. He has eviscerated that right.

What’s going on here?

What’s going on is the exercise of authoritarian impulses by a desperate president terrified of powerlessness and irrelevance, the Constitution be damned. I say “damned” because when the president writes laws, whether under the guise of administrative regulations or executive orders, he is effectively damning the Constitution by usurping the powers of Congress.

The Constitution could not be clearer. Article I, section 1 begins, “All legislative Powers herein granted shall be vested in a Congress of the United States.” Obama actually asked Congress to write the laws he is now purporting to write, and Congress declined, and so he does so at his peril.

In 1952, President Truman seized America’s closed steel mills because steel workers went on strike and the military needed hardware to fight the Korean War. He initially asked Congress for authorization to do this, and Congress declined to give it to him; so he seized the mills anyway. His seizure was challenged by Youngstown Sheet & Tube Co., then a huge operator of steel mills. In a famous Supreme Court decision, the court enjoined the president from operating the mills.

Youngstown is not a novel or arcane case. The concurring opinion by Justice Robert Jackson articulating the truism that when the president acts in defiance of Congress he operates at his lowest ebb of constitutional power and can be enjoined by the courts unless he is in an area uniquely immune from congressional authority is among the most highly regarded and frequently cited concurring opinions in modern court history. It reminds the president and the lawyers who advise him that the Constitution imposes limits on executive power.

The president’s oath of office underscores those limits. It requires that he enforce the laws faithfully. The reason James Madison insisted on using the word “faithfully” in the presidential oath and putting the oath itself into the Constitution was to instill in presidents the realization that they may need to enforce laws with which they disagree — even laws they hate.

But Obama rejects the Youngstown decision and the Madisonian logic. Here is a president who claims he can kill Americans without due process, spy on Americans without individualized probable cause, start wars on his own, borrow money on his own, regulate the Internet, ban lawful guns, tell illegal immigrants how to avoid the consequences of federal law, and now raise taxes on his own.

One of the safeguards built into the Constitution is the separation of powers: Congress writes the laws, the president enforces the laws, and the courts interpret them. The purpose of this separation is to prevent the accumulation of too much power in the hands of too few — a valid fear when the Constitution was written and a valid fear today.

When the president effectively writes the laws, Congress is effectively neutered. Yet, the reason we have the separation of powers is not to protect Congress, but to protect all individuals from the loss of personal liberty. Under Obama, that loss has been vast. Will Congress and the courts do anything about it?

Reprinted with the author’s permission.

The Best of Andrew P. Napolitano

Andrew P. Napolitano [send him mail], a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written nine books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visitcreators.com.

Copyright © 2015 Andrew P. Napolitano

Previous article by Andrew P. Napolitano: The Feds Are Terrified

 

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The Essence of Liberty: Volume III: A Universal Philosophy of Political Economy (Liberty: A Universal Political Ethic) (Volume 3)The Essence of Liberty Volume III: Liberty: A Universal Political Ethic. This is the volume that pulls it all together. With reference to Hans-Hermann Hoppe’s description of Murray Rothbard’s work, it is a “unique contribution to the rediscovery of property and property rights as the common foundation of both economics and political philosophy, and the systematic reconstruction and conceptual integration of modern, marginalist economics and natural-law political philosophy into a unified moral science: libertarianism.” Available in both paperback and Kindle versions.

You might be interested in the other two volumes of this three volume set: The Essence of Liberty Volume I: Liberty and History and The Essence of Liberty Volume II: The Economics of Liberty

About Land & Livestock Interntional, Inc.

Land and Livestock International, Inc. is a leading agribusiness management firm providing a complete line of services to the range livestock industry. We believe that private property is the foundation of America. Private property and free markets go hand in hand—without property there is no freedom. We also believe that free markets, not government intervention, hold the key to natural resource conservation and environmental preservation. No government bureaucrat can (or will) understand and treat the land with as much respect as its owner. The bureaucrat simply does not have the same motives as does the owner of a capital interest in the property. Our specialty is the working livestock ranch simply because there are so many very good reasons for owning such a property. We provide educational, management and consulting services with a focus on ecologically and financially sustainable land management that will enhance natural processes (water and mineral cycles, energy flow and community dynamics) while enhancing profits and steadily building wealth.
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