The President, when he is sworn into office, takes the oath to preserve, protect, and defend the Constitution of the the United States. Mr. Obama’s first term shows his repeated disregard and contempt for the Constitution that he has sworn to uphold. He has continually circumvented Congress’s constitutional role and he has denigrated the job of the judiciary. These repeated infractions seem to stem from a fundamental disregard for the rule of law and the text of the Constitution.
Our framers established three distinct branches of government so that each would serve as a check on the others, and so that none could trample on individual liberty. For instance, our Constitution gives the Senate a key check on executive power by requiring the president to seek Senate approval to appoint senior officials. Article II provides that the president “shall nominate, and by and with the advice and consent of the Senate shall appoint ... officers of the United States.” The president may bypass the Senate under only one circumstance: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate.” This winter, the Senate did not go into recess and on January 3 conducted a pro forma session. But the next day, the president simply declared the Senate to be “in recess,” though it plainly was not. Then, he purported to appoint several officers, evading the Senate’s constitutional role. It was the first time in U.S. history that a president attempted to make recess appointments when the Senate -- by its own lights -- was not in recess.
These appointments have been challenged in court, and it is likely that they will be declared unconstitutional. Making illegal appointments is just one way Obama has undermined the separation of powers. He has also skirted his duty to fairly implement the laws. The Constitution grants Congress the authority to enact legislation but requires the president to “take care that the laws be faithfully executed.” Obama failed to do this when adherence to the law would not reach his desired result.
Policy results seem to trump law when it comes to the role of the judicial branch as well. The Supreme Court is the final word on the Constitution. Mr. Obama has disparaged the judiciary’s constitutional function when the court has not rubber-stamped his agenda. Mr. Obama does not believe in the Constitution. To him it is just an obstacle in his way to a new America. It must be pointed out to him by critics that judicial review has been part of our constitutional system of separation of powers for over 200 years.
During oral arguments on ObamaCare, many of the Justices asked pointed questions about the law’s constitutionality. Several justices were clearly troubled by this unprecedented intrusion upon individual liberty.
Their fear is that if this stands then government would be allowed to regulate “every human activity from cradle to grave".
When he is not denigrating the work of the judicial branch, Obama has found it convenient to sidestep the judiciary altogether. Last September, the administration targeted and killed U.S. citizen. Five months later, Attorney General Eric Holder asserted unchecked power to target and kill U.S. citizens. Recent reports that Mr. Obama makes the final targeting decision acting as judge, jury and executioner. He claimed that judicial review was not needed because the executive branch had done its own internal evaluation.
Due process is essentially a judicial check on executive power, which safeguards citizens’ life and liberty. As Alexander Hamilton explained, “the words ‘due process’ have a precise technical import, and are only applicable to the proceedings of courts of justice.” The administration’s position undermines the judiciary’s constitutional function and turns the Due Process Clause into a dead letter, eliminating a core constitutional right. And Obama’s manipulation of “due process” – like his manipulation of “recess” undermines another fundamental check on executive power.
Again and again, President Obama bypasses the Constitution to enhance his own power, sidestep the other branches, and reach the outcome he wants. The notion that public servants – who take an oath to uphold the Constitution – may substitute their own judgment for the rule of law subverts the axiom that our country is “a nation of laws, not of men.” We have agreed to be governed by an objective body of law that our elected officials have a duty to evenhandedly uphold and apply.
Our framers understood this concept, which is why they created a system where no person – including the president—is above the law. If the President cherry picks which parts of the Constitution to obey and which to ignore, our Constitution becomes nothing more than a piece of paper.
*Special thanks to Stephanie Hessler
