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President Obama’s Executive Power End Run Around The Constitution (Forbes.com) January 16, 2013

Posted by daviddavenport in Op/Eds.

Reports that President Obama is considering the issuance of 19 executive orders on gun control raise a new round of questions about presidential power. Frustrated by his inability to work with Congress, Obama seems willing to do more and more unilaterally, to the ultimate detriment of the republic. It’s hard to overlook the irony that part of his brief against his Republican predecessor was George W. Bush’s willingness to stretch presidential power—the use of signing statements explaining why Bush didn’t accept parts of bills Congress passed, for example. But Obama himself is taking presidential power to new heights.
Consider his use of executive orders. There’s no real Constitutional authority for these, but presidents have long allowed themselves this privilege. The theory is that they are essentially “executing” laws Congress has already passed. But, as the Supreme Court told President Truman when he attempted to use an executive order to place all steel factories under control of the federal government, executive orders may not be used to make laws, only to execute them.
What’s new is Obama’s use of executive orders to initiate action where, in his view, Congress is moving too slowly, rather than to execute laws Congress has already passed. Everyone understands the need for comprehensive immigration reform, but rather than working this through patiently, Obama last year issued executive orders to get the ball rolling. One allowed immigrants who entered the country illegally to remain during a waiver process. Another directed officials to stop detaining undocumented immigrants arrested for lesser crimes. Yet another, which triggered a huge response, eased the rules for young immigrants who came to the U.S. illegally as children. Whatever the president calls it, all this constitutes major change to immigration policy right at the very time the country is trying to work through comprehensive reform.
Quite naturally the fear is that Obama is preparing to follow the same path on gun control. Rather than working things through the Congress, he could throw down the gauntlet, saying here’s a series of reforms I will do by executive order, deal with it! Hardly a good way to start a national conversation and a potential series of reforms on gun control.
Another example is Obama’s extensive use of czars, amassing and deploying yet more presidential power in the White House, avoiding Senate confirmation that is normally required of people as powerful as cabinet officers. Depending on how you count them, Obama has appointed a record number of czars—somewhere around 38—on a wide variety of matters from his car czar and green jobs czar to the more standard drug and Middle East policy czars. My personal favorite is the Asian carp czar (who apparently couldn’t bend the fish to his will after all). Surely a gun czar—a role temporarily being held by Vice President Biden—can’t be far behind. All these are unelected and unconfirmed senior White House officials with considerable power.
Frankly I’m surprised (and pleased) that the President says he will eschew another huge stretch of executive power: minting a platinum coin to cover the federal deficit. Defenders of this ridiculous idea pointed to the Treasury’s legal power to issue platinum coins. That, of course, was never the constitutional question. The real question was where the President could find the power to use such a coin to cover the national debt. Despite constitutional defenses mounted by Harvard constitutional scholar Laurence Tribe and others, Obama has wisely walked away from this option, at least for now.
Obama, lacking the charm of Franklin Roosevelt, nevertheless seeks to follow his path in growing executive power. Starting with President Woodrow Wilson, and culminating in Roosevelt’s New Deal, progressives sought to undermine the power of the legislature in favor of consolidating power in the executive branch. From passing the sweeping healthcare reform bill on a party-line vote, to the largest use of executive czars in our history, to initiating new policies on things like immigration and gun control by executive order, Obama seeks to leave 225 years of constitutional separation of powers behind. This needs to be exposed for what it is: a series of constitutional end-runs and a power grab by a frustrated and legacy-driven president.

Please click on the link to view the op/ed on Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/01/16/president-obamas-executive-power-end-run-around-the-constitution/

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