July 27th, 2019 Trump Wins Victory On Wall At Constitution’s Expense

Yesterday, the Supreme Court ruled in a 5-4 decision to lift a stay by a lower court judge preventing President Donald Trump from reprogramming funds appropriated by Congress to build the wall. The decision will allow the president to use $2.5 billion in funds designated for defense spending to begin construction on about 100 miles of border wall. Republicans applauded the decision, but the blows being struck against the Constitution’s balance of powers will have lasting consequences.

The ruling stems from President Trump’s decision to declare a national emergency on the southern border last February and move money appropriated by Congress for other purposes to the construction of the border wall. Under the president’s plan, $600 million from the Treasury Department’s forfeiture fund, $2.5 billion from Defense Department counter-narcotics activities, and $3.6 billion from military construction projects would be reprogrammed to finance construction of the wall. Friday’s ruling regards the $2.5 billion for the Defense Department, which Trump had designated for fencing in Arizona, California, and New Mexico.

Plaintiffs in the case were a group of environmental groups led by the Sierra Club and represented by the ACLU. The groups argued that they had “recreational and aesthetic interests” such as “hiking, birdwatching, [and] photography” in areas near the border. In June, a federal judge appointed by Barack Obama agreed and blocked the transfer of funds. Earlier this month, a three-judge panel from the Ninth Circuit upheld that decision in a two-to-one vote, noting that Congress had appropriated $1.375 billion for border barriers, rather than the $5.7 billion requested by the president. In the court’s view, that meant that the $2.5 billion had been “denied by the Congress.”

“As for the public interest, we conclude that it is best served by respecting the Constitution’s assignment of the power of the purse to Congress, and by deferring to Congress’s understanding of the public interest as reflected in its repeated denial of more funding for border barrier construction,” Judge Michelle Friedland, an Obama appointee, wrote for the court.

The Trump Administration appealed the stay to the Supreme Court, which ruled on Friday, that, “The government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review.” This means that the injunction preventing the Trump Administration from spending the reprogrammed $2.5 billion is lifted and the case returns to the lower court.

The Supreme Court’s five conservatives voted to lift the stay while Justices Ginsburg, Kagan, and Sotomayor dissented. Justice Stephen Breyer proposed a compromise in which the government could negotiate contracts but not actually spend the reprogrammed money until the case was fully decided.

While the ruling is understandably being celebrated by Republicans, the decision, along with another June decision by a different federal court, puts the judicial thumb firmly on the executive branch’s side of the scale that represents the balance of federal power. In the June decision, a Trump-appointed judge rejected a similar lawsuit by House Democrats, arguing that the national emergency spending represented a political dispute that was outside his authority to decide.

The fundamental problem is that courts are tying the hands of Congress in the face of abuses of executive authority. President Trump moved the funds under a federal statute that allows money to be reallocated to address “unforeseen needs” that have not been “denied by the Congress.” In the case of the border wall, neither condition applies. The problem of illegal immigration is hardly unforeseen, having been a hot button issue for more than a decade. The question of the border wall is one that has been repeatedly considered and denied by Congress. In fact, Trump’s national emergency declaration came immediately after the government shutdown in which he demanded unsuccessfully that Congress appropriate money for the wall.

As Republicans were fond of noting during the Obama era, the Constitution gives the House of Representatives the power of the federal purse. If federal courts refuse to rein in an executive that flouts the rule of law in order to bypass an uncooperative Congress, then the constitutional power of Congress is weakened and the president, already much more powerful than the Framers envisioned, becomes even stronger and less accountable. If the courts won’t uphold the constitutional role of Congress in the appropriation of funds then impeachment may be Congress’ only weapon against an out-of-control executive branch.

The judicial battle over national emergency funding for the border wall is not over yet, however. The Sierra Club case will now go back to the lower court to be decided. House Democrats are also appealing the lower court ruling in their own lawsuit against the president’s transfer of funds. It is entirely possible that one or both cases will return to the Supreme Court for a ruling on the question of whether using a national emergency to bypass congressional appropriations is constitutional, rather than the technical question of whether plaintiffs have the legal standing to sue.  

The idea that a border wall is the answer to the illegal immigration problem has become an article of faith on the right. Personally, I have my doubts about whether a barrier along the border would be as practical or effective as its proponents claim (click here for details). However, the legal question that needs to be answered is not whether a wall is a good idea but whether the president can unilaterally transfer funds appropriated by Congress to programs that were specifically rejected by Congress.

For Republicans to back the president on that question is to support a broad expansion of executive power at the expense of Congress. Backing that expansion confirms that Republicans are not a small government party of constitutionalists but a party that favors big government solutions when they come from the right. With many new Trump appointees on the bench, it is entirely possible that Republicans may get their wall over the objections of Congress, but the expansion of presidential power may come back to bite them.

Originally published on The Resurgent

We Aren't In A Constitutional Crisis. We're In Several.

House Speaker Nancy Pelosi said this week that she agrees with House Judiciary Chairman Jerry Nadler that the United States is undergoing a constitutional crisis due to Attorney General William Barr’s refusal to provide an unredacted version of the Mueller report to Congress. Pelosi is correct that the US is in a constitutional crisis – a series of constitutional crises to be exact – but not in the way that she means.

There have been many explanations of why the Democrats are off base with their contempt vote against Barr so I won’t cover that ground here except to say that Barr is following the law in his actions. Certain parts of the report cannot be released because federal law prohibits it. President Trump’s claim of executive privilege, which will most likely only last until Barr can ready a more lightly redacted version of the report for congressional distribution, is justified in this case.

When it comes to the congressional request of President Trump’s tax records, the shoe is on the other foot. The IRS code requires the Treasury Secretary to provide certain congressional officials with any taxpayer’s return and tax information. Nadler has provided a legitimate, if contrived, reason for the request, but Secretary Mnuchin has refused to comply. Since the request falls under congressional oversight of the executive branch and the separation of powers specified in the Constitution, Mnuchin’s refusal could be considered as fomenting a constitutional crisis.

Yet the congressional fishing expedition with respect to Trump’s personal financial data is transparent. Even though House Democrats are acting within the law with respect to the subpoenas of Mnuchin and Trump’s tax returns, their unspoken rationale of finding dirt, possibly criminal wrongdoing, on the president or simply using the information to embarrass him is outside the scope of congressional powers. Congress has rights to the information for certain reasons but not for the purpose of seeking revenge on the president. Nevertheless, “because it will embarrass the president” is not a legal ground to refuse a legitimate congressional request. If Congress abuses its authority to oversee the president then that is also a constitutional crisis.

A third constitutional crisis regards President Trump’s tariff war. The first salvo in the trade war was fired on March 1, 2018, when the president announced his intention to impose protective tariffs on steel and aluminum. The tariffs were imposed under section 232 of the Trade Expansion Act of 1962 which allows the president to impose national security tariffs. While the rationale was doubtful given the strength of the US steel and aluminum industries, a court did declare these tariffs constitutional earlier this year. Further, CNN pointed out that under a series of laws such as the Trading with the Enemy Act of 1917, the International Emergency Economic Powers Act of 1977, and the Trade Act of 1974, the president has almost unlimited authority to declare tariffs without congressional approval.

The constitutional crisis, in this case, is that Congress has abrogated its authority to “lay and collect taxes, duties, imposts and excises” under the Constitution. Congress has delegated this important power away to the president and the country is now feeling the effects of congressional impotence. Congress needs to reclaim this authority, if not now, then soon after President Trump leaves office.

Yet another constitutional crisis concerns the internal Department of Justice memo that prevents indictment of a sitting president. The special counsel’s decision to abide by the DOJ policy and then pointedly state that he could not say that Donald Trump did not obstruct justice left America in limbo. The claim of “no collusion, no obstruction” is obviously incorrect, but as yet there is no resolution to the president’s unethical, quasi-illegal behavior. The president should not be above the law. If he committed an act that would be a crime for an ordinary, nonpresidential American then he should be prosecuted just as they would. The DOJ memo was intended to prevent baseless persecution of the president by the opposition, but it unintentionally created a Get-Out-of-Jail-Free card for presidents without respect for the rule of law.

Next is President Trump’s decision to declare a national emergency to bypass Congress. When the emergency was announced in February it was big news, but this crisis has since been forgotten with the onset of a number of succeeding scandals. Yet the national emergency is a constitutional crisis that undermines the very existence of Congress. Under President Obama, Republicans were adamant that the House had the “power of the purse,” but now most feel that it is fine for President Trump to ignore a Congress that won’t do his bidding. Regardless of whether building the wall is a good idea or not, claiming a national emergency to procure funds for it against the express will of Congress is a horrible precedent, but one that is sure to be repeated by future presidents if it is not quashed by either Congress or the courts.  

The final constitutional crisis (at least so far) is Congress’s failure to rein in the imperial presidency. Donald Trump figures prominently in many of the ongoing constitutional crises but not all are unique to him. For example, Barack Obama’s executive decisions on DACA usurped congressional authority and his executive agreement with Iran undercut the Senate’s constitutional role of ratifying treaties. The abdication of congressional authority to levy tariffs goes back decades. The presidency will continue to become ever more powerful unless Congress takes steps to assert itself.

A major part of the problem is that congressional partisans have an attitude that the end justifies the means. Partisans of both sides refuse to hold their own presidents accountable because they like the results of their expansion of executive power. Democrats approved of Obama’s DACA deal and Republicans love Trump’s national emergency. If Congress is going to successfully limit presidential authority, it will require both sides to cross the aisle and work together to uphold the constitutional limits on the executive branch.

Reaching across the aisle is often considered traitorous these days, but the Congress has a higher duty to the Constitution than to the political parties. If Congress doesn’t act to defend the Constitution, presidents of both parties will keep chipping away at it until there is no need for the legislative body at all.

Benjamin Franklin famously said at the close of the constitutional convention that the delegates had decided on “A Republic if you can keep it.” The slow erosion of congressional authority shows that the struggle to keep the Republic must go on.

Originally published on The Resurgent

Senate To Block Trump’s National Emergency, Veto Expected

In a rare rebuke of President Trump, Senate Republicans are expected to join with Democrats today to pass a House resolution blocking the president’s emergency declaration and redirection of other funds toward construction of the wall. President Trump has said that he plans to veto the measure if it passes.

Republicans currently hold 53 seats in the Senate and at least five Republican senators are expected to vote against Trump on the resolution, which has already passed the House. Sen. Mike Lee (R-Utah), who originally said that Trump had the authority to declare an emergency, is the most recent Republican to line up against the president. On Wednesday, Lee told Reuters, “ For decades, Congress has been giving far too much legislative power to the executive branch. I will be voting to terminate the latest emergency declaration.”

Other Republicans voting against the measure include Rand Paul of Kentucky, Lisa Murkowski of Alaska, Susan Collins of Maine and Thom Tillis of North Carolina. Still others, such as Sens. Marco Rubio of Florida, Mitt Romney of Utah, Lamar Alexander of Tennessee, Johnny Isakson of Georgia,  Ron Johnson of Wisconsin, Ben Sasse Nebraska, and Jerry Moran of Kansas are among the Republicans who could join them.

In an ironic claim, President Trump has announced that he plans to use his constitutional veto power to block the resolution that rolls back his abuse of executive authority. In a Thursday morning tweet, the president said, “I am prepared to veto, if necessary. The Southern Border is a National Security and Humanitarian Nightmare, but it can be easily fixed!”

https://twitter.com/realDonaldTrump/status/1106144173458161664

Even though a number of Republicans are crossing the aisle to rein the president’s attempt to bypass Congress’s constitutional authority to appropriate funds, it does not appear that enough Republicans are willing to stand up to Mr. Trump to override a veto.

While President Trump can win the immediate battle with a veto, he is still likely to lose the larger battles of public opinion and getting the wall built. Most polling shows that although voters are split on the wall, they overwhelmingly oppose the use of a national emergency to fund it. A Politico/Morning Consult poll released yesterday found that 52 percent of voters oppose the national emergency, up one percent from a month ago. Ominously for Republicans, independents oppose the declaration by a two-to-one margin.

Even if his veto is upheld, the wall is unlikely to be built anytime soon. The emergency declaration is a transparent attempt to avoid compromising with congressional Democrats that almost certainly violates the letter of the law, as well as its spirit. Sixteen states, including several in the Southwest and along the border, have filed a lawsuit to block Trump’s redirection of federal funds. Courts are likely to block Trump’s executive move and halt construction of the wall for years until the legal questions can be resolved.

As with the government shutdown, President Trump has painted himself into a corner with no good options. The president is doubling down on an unpopular strategy in an attempt to force through a policy that is unpopular outside his own party and that is unlikely to be effective at solving the illegal immigration and smuggling problems on the southern border. The fact that the wall costs billions of dollars at a time when the federal deficit is skyrocketing is icing on the cake.

The president is putting other Republicans in a bad position as well. Congressional Republicans are being forced to go on record either for an unpopular policy or against a president that is popular with the Republican base. The first option will harm them in the next year’s general election while the second will hinder them in their primaries.

In the end, the principled choice for Republicans should be to stand up against the president and for the rule of law. After eight years of criticizing President Obama’s executive abuses and rampant spending, it will be very difficult for Trump Republicans to sign off on the president’s end-run around Congress and debt-fueled spending binge without looking like hypocrites in the eyes of voters around the country.

Originally published on The Resurgent

Federal Court Strikes Down N.C.'s 'Partisan' Gerrymander

In a blow to North Carolina Republicans, a panel of federal judges ruled on Tuesday that the state’s congressional map is an unconstitutionally “partisan” gerrymander. The ruling gave the state until 5 p.m. on Jan. 29 to submit a new map or the court would take further action.

The unanimous ruling by judges appointed by Barack Obama, Jimmy Carter and George W. Bush was the first time that a court has struck down congressional districts for being too partisan notes the Charlotte Observer, but the Wisconsin congressional map is currently on trial before the Supreme Court in a similar case.

In the North Carolina decision, the majority held, “On its most fundamental level, partisan gerrymandering violates ‘the core principle of republican government . . . that the voters should choose their representatives, not the other way around.”

Once part of the Republican bloc of Southern states, North Carolina has been increasingly purple in recent election cycles.  Only three of the state’s 13 congressional seats are held by Republicans, as are both Senate seats, but those statistics understate the fluid nature of Tarheel politics.

Democrat Kay Hagan was elected to the Senate in the 2008 Democrat wave, but was unseated by Thom Tillis in 2014. North Carolina’s other Republican senator, Richard Burr, took the seat of John Edwards, who retired in 2005 in order to run for vice president.  While the Republican candidate has won North Carolina in three of the last four presidential elections (2008 was the exception), margins have been close. Donald Trump carried the state by less than four points.

The current North Carolina congressional districts date back to 2016. The districts were redrawn to exclude racial data after a court found that the previous districts, drawn in 2011, were unconstitutional racial gerrymanders. At the time, Republicans were open about drawing districts to their advantage, a common practice in many states.

“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with eleven Republicans and two Democrats,” N.C. Rep. David Lewis (R-Harnett County) said at the time. Lewis’ comment was the basis for a lawsuit by the League of Women Voters and Common Cause in North Carolina that led to Tuesday’s ruling.

Dallas Woodhouse, executive director of the N.C. Republican Party, blasted the ruling on Twitter saying, “It is incredibly disappointing  activist Judge Jim Wynn is waging a personal, partisan war on North Carolina Republicans.” Woodhouse added that the decision was a “hostile takeover” of the North Carolina General Assembly, which has responsibility for drawing congressional districts.

North Carolina Republicans plan to appeal the ruling to the Supreme Court, but a delay in redistricting may cause further problems as the 2018 elections approach. Congressional candidates must file to run for office by February 12, scarcely two weeks after the court’s deadline.

If the ruling stands and North Carolina’s congressional districts are redrawn to be less partisan, the new lines could contribute to an already tough election year for the GOP. The loss of safe congressional seats in North Carolina would come at a particularly bad time Republicans as many signs point toward Democrats winning control of the House of Representatives in a possible wave election this year. 

Originally published on The Resurgent

Few lasting achievements from Trump's 100 days

As the Trump Administration passes its 100-day mark, the most striking thing is how ineffective the new president has been thus far. In spite of a plethora of Executive Orders that undoubtedly please most on the right, President Trump has put few lasting marks on the country at this early point in his presidency.

Even though President Trump has signed many bills in his tenure as president, most have not been laws that have lasting significance. For conservatives, passing laws is not an end unto itself. Laws should roll back government and make it smaller and less intrusive on the American people. Politifact notes that several of the bills that Trump has signed are business-as-usual type laws that designate memorials and name buildings, for example.

Not all of Trump’s new laws have been trivial, however. About half of the 28 bills signed by Trump so far were passed under the Congressional Review Act. This law allows Congress to review and rescind last-minute Obama-era rules by federal agencies. The law provides for a 60-day window to review bureaucratic rules that begins when Congress is notified that a rule has been finalized. The Daily Signal has a list of Obama-era rules that run the gamut from gun control to environment to education that have been rescinded by President Trump and the new Congress. Nevertheless, the laws merely preserve the status quo and do not break new ground in shrinking government or rolling back Obama’s legislation. Additionally, the window is now closed to rescind other rules from the Obama Administration.

The most notable legislative story of Trump’s 100 days is the failure to advance a bill repealing or reforming Obamacare. For seven years, Republicans have railed against President Obama’s trademark health entitlement yet, under President Trump’s leadership, Republicans in Congress have failed to advance even a watered-down version of bill reforming Obamacare.

President Trump’s answer was to pivot from health care to tax reform, but he is likely to have the same result and for the same reasons. The Trump coattails left Republicans with tiny majorities in both houses of Congress. The Republican Senate majority cannot defeat a Democrat filibuster and the House Republicans are too divided between Tuesday Group moderates and Freedom Caucus conservatives to pass a health reform bill. Tax reform is likely to be no different.

In order to avert a government shutdown, President Trump even had to give in and omit funding for construction of his wall and crackdown on sanctuary cities from the spending bill that will carry the government through the end of the fiscal year in September. Trump said repeatedly that Mexico would pay for the wall before asking for taxpayer funds.

Trump has done better with Executive Orders. The president has issued many orders that will slow the growth of government and streamline government regulations. An early Trump Executive Order reinstated President Reagan’s Mexico City policy that banned federal funds from international groups that promote abortion. President Obama had rescinded the policy in 2009. Other Executive Orders, such as the travel ban, seem poorly conceived from the beginning.

Good or bad, Executive Orders are limited. The president cannot legislate from the Oval Office with an Executive Order in place of Congress. Executive Orders may also last only as long as the president who signed them. An incoming president could sign Executive Orders rescinding Trump’s orders as easily as Trump reversed Obama’s.

On foreign policy, President Trump, whose views in the campaign ranged from promising a plan to destroy ISIS within his first month to neo-isolationism in other regions, launched what is largely considered to be an ineffective attack on a Syrian airbase in response to a chemical weapons attack before turning his attention to North Korea.

For several weeks, Trump suggested that he would make trade concessions to China in exchange for help in dealing with North Korea. As recently as April 30, Trump suggested on CBS News that he was open to dealing with China on trade, saying, “Trade is very important. But massive warfare with millions, potentially millions of people being killed? That, as we would say, trumps trade.”

Today that has changed. Commerce Secretary Wilbur Ross seemed to walk back weeks of diplomatic overtures in an interview with CBS, saying, “I don't think he [Trump] meant to indicate at all that he intends to trade away American jobs just for help on North Korea.”

One hundred days into Trump’s presidency, there is also still no detailed plan to defeat ISIS.

To date, the Trump presidency can be described as lurching from one crisis to another. Some of these crises have been self-inflicted, such as the president’s tweets about wiretapping by the Obama Administration. Others, such as North Korean missile tests and Syrian chemical warfare, have been outside the president’s control. Still others, such as the division among congressional Republicans, reflect a lack of leadership from President Trump.

The one unqualified success that President Trump has had is with the confirmation of Neil Gorsuch to the Supreme Court. Gorsuch seems to be as solid a conservative jurist as anyone could possibly have picked. Nevertheless, the confirmation came at the cost of the filibuster. This was necessary due to unreasonable Democratic obstructionism, but may haunt Republicans in the future.

To have a lasting and positive impact, President Trump is going to have to develop a cogent and consistent worldview on both domestic and foreign policy. So far, the president has been inconsistent on numerous issues in both realms. He needs to make up his mind as to what his goals are and concentrate on those items.

The president also needs to learn to work with Congress. Donald Trump was elected partly on claims that he is a world-class dealmaker. His deal-making skills are sorely needed in hammering out compromises on Obamacare and tax reform, but so far President Trump seems to have little interest in the details of policymaking. The president should realize that the qualities that made him the Republican nominee and that enabled him to win the election don’t necessarily make him a natural leader and statesman.

None of this means that he will have a failed presidency, however. President Trump has assembled a very qualified and capable team. With a few exceptions, the Trump cabinet can truly be called a “conservative dream team.” President Trump should listen to their advice and consider it carefully.

As someone who was a Never Trump conservative and a third-party voter during the election, I must admit that Trump, with all his foibles, has not been the worst-case scenario that I feared. So far, he has undoubtedly been better than President Hillary (shudder) would have been. Neither has he been a valiant, steely-eyed, conservative leader. The truth is somewhere in the middle.

So far President Trump has been erratic and ineffective, but he has trended toward the right. In some cases, such as backing away from his plans to terminate NAFTA, his flip-flops have even be reassuring. In other cases, such as his saber-rattling against North Korea, his actions are downright scary.

After 100 days, the jury is still out. 

Originally published by The Resurgent

Why Trump did not need Congressional approval to strike Syria

After President Trump ordered the US military to launch a strike on the Syrian airbase where this week’s sarin gas attack originated, many on the internet are claiming that he violated his constitutional authority as president. Only Congress can declare war, they say, so President Trump should have obtained a congressional authorization to launch his punitive attack.

This argument is based on a misunderstanding of the Constitution. While it is true that Article I Section 8 says that “The Congress shall have Power… To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water,” the focus should be on what the Constitution does not say.

For example, the Constitution does not say that the president, who it names as the “Commander in Chief of the Army and Navy of the United States,” shall obtain the permission of Congress before deploying the army and navy in combat. The Constitution also does not say that a declaration of war is required before ordering the military to attack.

That the president has the power to order the military into combat unilaterally is not a recent interpretation of the original intent of the Framers. In his excellent book, “The Savage Wars of Peace,” Max Boot details the numerous small, undeclared wars and military actions that the United States has been involved in during our short time on earth.

Proponents of declarations of war might be surprised to learn that America’s first undeclared war occurred in 1801, a scant 14 years after the Constitution was ratified. Although Congress authorized action against Tripoli in 1802, a formal declaration of war against the pirate kingdoms did not come until 1815 under James Madison. Yet if President Jefferson overstepped his constitutional authority in ordering the US Navy and Marines to go to war against the kingdoms of the Barbary coast in what is now Libya, there would have been opposition from the still-living Framers of the Constitution and authors of the Federalist Papers. Jefferson’s opponents criticized his Louisiana Purchase as exceeding his authority instead.

Although the US has been involved in many conflicts, only five wars have been formally declared. These include the War of 1812, The Mexican War, The Spanish-American War, World War I and World War II. That does not mean that all other conflicts were unconstitutional, however.

Congress has authorized the use of military force at least 13 times without declaring war. The first such authorization occurred even before the Barbary wars when Congress authorized John Adams to use military force against France during the Quasi War of 1798-1800. Congress has authorized the president to use military force many times in recent years including in Vietnam, Afghanistan, and twice in Iraq. These authorizations could be construed to fill the constitutional role of a declaration of war.

Many conflicts never had congressional approval at all. One of the largest undeclared wars, The Korean War, was never authorized by Congress. Neither was George H. W. Bush’s deployment of troops to Somalia or Bill Clinton’s deployments to Bosnia and Haiti. President Bush’s invasion of Panama received congressional approval only after the fact. President Obama never went to Congress for approval of his intervention in the Libyan civil war.

An opinion memorandum from the Deputy Counsel to the President from September 2001 quotes the Supreme Court in United States v. Verdugo-Urquidez (1990), “[t]he United States frequently employs Armed Forces outside this country—over 200 times in our history—for the protection of American citizens or national security” and goes on to note, “On at least 125 such occasions, the President acted without prior express authorization from Congress.”

The military actions in Korea, Bosnia and Libya were authorized by the United Nations even though Congress never signed off on them. In some cases, such as the Persian Gulf War, military force was authorized by both Congress and the UN.

In 1973, Congress was concerned enough about the possibility of abuse of presidential war-making authority that it passed the War Powers Act to clarify the constitutional roles of the president and Congress. The WPA requires the president to “consult” with Congress before introducing US troops into hostile or potentially hostile situations. It also requires the president to withdraw American forces after 60 days unless Congress grants approval for continued action.

The requirement to consult with Congress sets a low bar. It allows the president to act quickly and for a short time without a congressional approval. Under both the Constitution and the WPA, there is no specific requirement for the president to seek approval from Congress for a single military strike.

If a sustained campaign against a hostile foe is required, the rules are different. The War Powers Act, but not the Constitution, sets a 60-day time limit for unilateral actions by the president. Even then, neither law requires the president to ask for a formal declaration of war.

Why is Congress granted the power to declare war if such a declaration is not required under the Constitution? A declaration of war has legal implications that an authorization for use of force does not.

“In contrast to an authorization, a declaration of war in itself creates a state of war under international law and legitimates the killing of enemy combatants, the seizure of its property, and the apprehension of enemy aliens,” says the Congressional Research Service. “With respect to domestic law, a declaration of war automatically triggers many standby statutory authorities conferring special powers on the President with respect to the military, foreign trade, transportation, communications, manufacturing, alien enemies, etc.”

Undeclared and unauthorized military actions are still subject to international law. “Perhaps most important,” notes the CRS, “neither a declaration nor an authorization is necessary to trigger application of the laws of war, such as The Hague and Geneva Conventions; for that, the fact of armed conflict is the controlling circumstance.”

The lack of a declaration or authorization does not mean that the president’s actions are illegal under international or domestic law. President Trump’s strike against Syria was well within his role as commander-in-chief of the US military and his power to set foreign policy. A ground invasion and occupation of Syria would trigger different rules, but would still not require a formal declaration of war.

 Originally published by The Resurgent

Trump speech was mixed bag for conservatives

President Trump’s speech to the joint session of Congress last night (text here) was a triumph for the president. Without a doubt, Mr. Trump delivered one of the most effective speeches of his political career.

Stylistically, the president was smooth and practiced. The speech was in sharp contrast to his disjointed stump speeches and press conferences. Mr. Trump proved that he can deliver a polished, rehearsed speech with minimal ad libbing. In a word, Mr. Trump seemed presidential.

To a conservative, the content of the speech was a mixed bag. Much of what I heard involved new federal spending by a government that is broke. While I applaud Mr. Trump’s desire to expand the defense budget and believe that rebuilding the military is long overdue, I would have liked to hear that the new spending would be balanced by spending cuts elsewhere. Instead, I heard that there would be more spending domestically.

“America has spent approximately six trillion dollars in the Middle East, all this while our infrastructure at home is crumbling,” Trump said in a statement that sounded like it could have come from Barack Obama. “With this six trillion dollars we could have rebuilt our country --- twice.”

Trump continued, sounding even more like Obama circa 2009, “To launch our national rebuilding, I will be asking the Congress to approve legislation that produces a $1 trillion investment in the infrastructure of the United States -- financed through both public and private capital --- creating millions of new jobs.”

America has already tried a near-trillion-dollar stimulus. It failed to stimulate the economy or the job market. It didn’t work. We woke up afterward with eight years of economic stagnation and a national debt that had almost doubled.

“I believe strongly in free trade but it also has to be FAIR TRADE,” Donald Trump said.

I distrust politicians who talk about fairness. Fairness is the opposite of freedom because it relies on government to determine what is fair. Fairness is subjective. What is fair is at the discretion of who defines fairness. When fairness is the goal, government grows because government is the ultimate arbiter of fairness… if you can hire enough lobbyists to advance your notion of fairness.

When Barack Obama said that he wanted people to pay their “fair share,” I held onto my wallet. When I hear Donald Trump talk about fair trade, I expect that, if he gets his way, I will be paying more when I go to the store.

President Trump’s speech did have plenty for conservatives to applaud. His support for the repeal and replacement of Obamacare was much needed. Hopefully, he will take the lead on unifying congressional Republicans around a single plan. Trump’s promise of tax reform is also much needed. His victory lap over the appointment of Neil Gorsuch to the Supreme Court was well deserved. His support for law enforcement after Barack Obama’s equivocations was reassuring.

Also reassuring was President Trump’s expressed support for immigration reform. While Trump did stress violent crimes carried out by illegal immigrants and promised again to build his wall, he did open the door to the bipartisan compromise that will be necessary to resolve the problem of illegal immigration. The claim that Mexico would pay for the wall was conspicuously absent.

There was a shortage on specifics in general, but especially on how a broke government will pay for his many programs.

The most moving part of the night – and probably the longest of many ovations – was for President Trump’s salute to US Navy Senior Chief William "Ryan" Owens, who recently died on a raid against al-Qaeda in Yemen. It is doubtful if there was a dry eye in the house as the president recognized Ryan’s widow, Carryn.

Reaction to the speech will largely depend on what camp the listener falls into. Trump supporters will justifiably claim that he hit a homerun. Trump opponents will point to flawed policies and very questionable claims and statistics.

As a conservative who voted for “none of the above,” I can at least think that Trump is, so far, better than Hillary would have been. Other than not withdrawing from the TPP, I cannot think of anything that Hillary would have said that would have been more palatable than Mr. Trump’s speech. A low bar, I know. President Trump, for all his flaws, has so far supported at least a partially conservative agenda and appointed some (not all) very good people to very important jobs.

Nevertheless, as the speech opened and closed, it’s easy to hear Trump saying, “Generations from now, we will look back and tell our children that this was the moment when we began to provide care for the sick and jobs for the jobless. This was the moment when the rise of the oceans began to slow and our planet began to heal.”

How did that work out?

Originally published on The Resurgent

Poll says Trump should work with Congress

There was good news for the president with yesterday’s Morning Consult poll showing that a slim majority of Americans approve of his Executive Orders, including the controversial travel ban, but another new poll shows that Americans may be tiring of the unilateral actions by the president.

A new Rasmussen poll shows that a strong majority of likely voters believe that the federal government should only do what the president and Congress agree on. A total of 56 percent believe that the president and Congress should work together to pass laws while only 32 percent believe that President Trump should act alone.

In 2014, Rasmussen also reported that voters wanted President Obama to work with Congress as well. In that poll, 82 percent of voters wanted the executive and legislative branches of the government to work together.

It is interesting to note that about twice as many respondents feel that it is permissible for President Trump to stand alone (32 percent) than President Obama (13 percent). This is especially true considering that President Trump’s party controls Congress while President Obama had a Congress controlled by the opposition in 2014.

The partisan breakdown of the two polls was not available, but it is likely that many Republicans and Democrats have switched positions on the use of executive actions over the past three years. While most Republicans opposed President Obama’s abuse of his executive authority, the recent Morning Consult poll that 82 percent of Republican voters approved of President Trump’s immigration Executive Order.

While on the campaign trail, Donald Trump said, “I'm going to do a lot of things [with Executive Orders]” and noted, Obama “led the way, to be honest with you.”

Nevertheless, with Republicans in control of both the White House and Congress, it should be relatively easy for President Trump and Republicans in Congress to find agreement on many issues. In practice, the president will still need to win some Democrat support, however. The Republican 52-seat majority is not enough to win cloture votes without some Democratic support.

Congressional action has the added benefit of being harder to reverse than executive actions. Many of President Trump’s Executive Orders reverse orders given by President Obama. President Trump’s orders could likewise be erased by a future president with the stroke of a pen.

More importantly for the country, if President Trump works with Congress, it will give the country a chance to have a (hopefully) rational debate on public policy, rather than merely respond to edicts handed down from on high. This will give Republicans a chance to explain and defend their ideas and maybe even win support for them.

Originally published on The Resurgent

What to look for on election night

After almost two years in the making, Election Day 2016 is almost here. Thanks to Russia, WikiLeaks and the FBI, the election looks to be much closer than many of us thought it would be. Polling is close, but favoring Hillary Clinton. At this point, it is by no means a blowout and Donald Trump does have a chance of winning.

There are several very important races on the East Coast where polls will close first. The swing states of Florida, North Carolina, Ohio and Virginia will all be among the first states in the nation to be decided. Virginia has been generally assumed to be leaning toward Clinton so the other three states are all must-win for Trump. Although wildly inconsistent, polling seems to show Clinton ahead in North Carolina and Trump leading in Ohio. Florida is a dead heat. If Trump doesn’t carry Florida, North Carolina and Ohio the race may well be over before polls close in the Central Time Zone.

There are also three blue states to watch that have been soft in their support for Clinton. Even if he wins all the swing states, Trump must flip at least one sizable blue state or states worth about 12 electoral votes to win the Electoral College. Some observers believe that Pennsylvania is his best chance to do that. If Trump manages to flip Pennsylvania and take the swing states, the Clinton campaign will have a long night.

New Hampshire and Maine’s second congressional district also give Trump a chance to peel off some of Hillary’s electoral votes. Polls in New Hampshire have closed in recent weeks with several polls showing Trump in the lead. These small prizes probably won’t decide the election, but could signal a shift in the electoral map.

There is also one traditional red state to watch. A recent poll in Georgia showed Trump with only a one-point lead. Other polls over the past few months showed a tight race in the Peach State. Georgia will probably rally toward Trump, but a Clinton victory there could mean a rout for Donald Trump.

In the central states, Iowa is the only traditional swing state. Trump is currently favored there and it is the most likely swing state for him to flip.

A bad night for Hillary Clinton might see close races in Michigan and Wisconsin. She is favored in both typically blue states, but by single-digit margins. Trump originally had high hopes of competing in these Rust Belt states, but was never able to gain traction.

The red state of Texas showed a tight race several weeks ago, but the gap has since opened in favor of Trump. Still, a large Hispanic electorate could mean problems for Donald Trump. If Georgia goes for Hillary, keep a close eye on Texas.

Moving west, there are four states to watch. Colorado and Nevada are traditionally considered swing states and both remain in tossup status. Colorado is favored for Clinton, but the race is very tight. The situation is the same in Nevada where Trump holds a slight edge in polling.

Arizona is another red state to watch. Over the past few weeks, Hillary Clinton was actually able to take the lead for a brief time in this border state that typically goes Republican. Trump regained some ground to take a slight lead, but is still running well behind Sen. John McCain (R) in his reelection bid. Like Texas, Trump’s weakness with Hispanic voters could cause him problems in Arizona.

The deep red state of Utah will be one of the most interesting states to watch. Native son Evan McMullin is mounting a surprisingly strong independent campaign and was in the lead for a short time. Trump is currently favored but uneven polling for third party candidates may mean that McMullin has a better chance than generally believed.

The presidential election is only part of the night. Equally, if not more, important, are several races to determine control of the Senate. Democrats need five seats to take control of the Senate and there are eight battleground races for Republican seats. The outcome here may be even closer than the presidential race.

Of the eight races, the Republicans are only the favorite in Florida where Marco Rubio should be reelected. The Democrats are favored in Illinois and Wisconsin. That leaves three tossup races in Missouri, New Hampshire and North Carolina. Indiana and Pennsylvania also recently moved from likely Democratic to tossup status as polling for the Republican incumbents improved.

Additionally, the Democrats are defending one Senate seat in a tossup race. Republican Joe Heck is fighting hard for Harry Reid’s seat in Nevada. The race has been within the margin of error of most polls.

In the House of Representatives, the Republicans are expected to lose seats, the big question is how many. There seems to be little question that Republicans will still control the House next term. This will provide a firewall against the Clinton agenda if Hillary wins and the Democrats take the Senate. It will not prevent Hillary from appointing radical judges, however.

Trump’s path to the presidency is a narrow one. Trump must win all of the swing states that are still in play plus at least one blue state. Hillary has an easier task. She can block him by winning Florida or North Carolina and holding Pennsylvania. The battle for the Senate is much less clear with six tossup races to watch.

One way or another, the long national nightmare of the 2016 campaign is almost over. We are about to embark on an entirely new one.

Originally published on The Resurgent

Congress is the key to stopping Hillary

A major argument for Donald Trump has been that “He’s not a great candidate or a conservative, but we need him to prevent Hillary from picking Supreme Court justices who will gut the Second Amendment.” Given the numerous questionable characters that Trump has chosen to work on his campaign, the idea that he knows how to “hire the best people” is dubious at best. Now, as the “Trump train” goes off the rails three weeks before the election, it is becoming apparent that conservatives need to find an alternative strategy to save the Court and block Hillary. The key to stopping the liberal agenda for the next four years is Congress, specifically the Senate. 

Let’s face it. Depending on Trump to appoint strict constructionists to the Supreme Court was always a long shot. The possibility that Trump might appoint good judges outweighs the certainty that Hillary won’t, Trump supporters argue. If one ignores all the other arguments against Trump, it might even be convincing. Yet as Trump goes rogue on the campaign trail, even that slim possibility seems to be vanishing as a Clinton victory grows more and more likely.

The only certain way to stop Hillary’s agenda before it starts is to make sure that the Republican majority in the Senate is preserved. Many Trump supporters will say that the Republicans in Congress didn’t do much to stop Obama for the past six years. They are wrong. The truth is that Republicans in Congress were very successful at stopping Obama’s legislative agenda.

After the Tea Party wave election of 2010, the Democrats did not pass any major legislation for the next six years. Obama’s landmark laws, the stimulus, the Affordable Care Act and the Dodd-Frank financial reform bill, were passed with Democrat majorities in both houses. Not a single Republican voted for Obamacare or the stimulus.

The Republicans in Congress were remarkably successful at stopping President Obama’s legislative agenda. Obama tried to push through gun control in the wake of the Newtown massacre. Republicans stopped him. They actually cut spending in terms of real dollars in consecutive years for the first time since the administration of Dwight Eisenhower. After the death of Antonin Scalia, Republicans in the Senate tabled President Obama’s nomination of Merrick Garland to fill the vacant seat on the Supreme Court. How much credit did Republicans get for these victories? Approximately zero.

Much of the confusion over the Republican Congress “surrendering” to Obama, as many claim, is the difference between stopping Obama and passing legislation to roll back what Obama has already done. Congress is set up so that it is easier to prevent a bill from becoming a law than to enact a new law. This is particularly true in the Senate.

In the Senate, the first hurdle that a bill must pass to become a law is a cloture vote. Cloture is a gentleman’s filibuster. Rather than speaking for hours on end as they did in the old days, today’s Congressmen can block a bill from coming to a vote by rallying 41 opponents to vote against cloture, or ending the filibuster. Therefore, the 46 Democrats in the Senate could effectively block any Republican bill from ever coming to a vote and that is precisely what they did.

The cloture rule is not part of the Constitution. Senators could decide to eliminate it in favor of a straight majority vote. The problem is that there is an even greater hurdle. If a bill passes both houses of Congress, it still faces a presidential veto. To override a veto requires 67 votes in the Senate. Logically, if a bill can’t pass a cloture vote, the veto can’t be overridden.

When the Republicans blocked Obama legislatively, he began issuing expansive Executive Orders and having regulatory agencies issue rulings with the force of law. Because these tactics bypassed Congress, Republicans could not block them. Stopping these abuses would require passing new laws, but the 54 Republicans could not pass new laws without Democratic support. That reality doesn’t change even with a government shutdown. The situation has effectively been a stalemate with neither side willing to compromise on most issues.

Because of the number of Republican Senate seats up for reelection in swing states this year, it was generally assumed that the Republican majority would be smaller for the next Congress. As recently as a few weeks ago, it looked like Republicans would retain control of the Senate, even if they lost some seats. Then came Trump’s implosion.

Not only have the Trump scandals hurt down ballot Republicans, but Trump and his supporters have attacked his fellow GOP candidates. At this point, it seems increasingly likely that the Democrats will win control of the Senate. Even the large Republican majority in the House may be threatened.

While retaining the House would allow Republicans to block legislation such as gun control measures from becoming law, losing the Senate would mean that Democrats could easily appoint extremist liberal judges to the courts with a simple majority vote. There is no filibuster for most judicial appointees thanks to Sen. Harry Reid’s (D-Nev.) use of the “nuclear option” in 2013. With a Democrat Congress and a Democrat president, the filibuster might be eliminated entirely.

On the other hand, retaining control of the Senate would allow Republicans to stop Hillary’s agenda right out of the gate. Appointments to the Supreme Court could theoretically be blocked until after the 2020 elections, if necessary. The Senate has already shown its willingness to stop bad treaties and liberal legislation in its tracks.

There should be no illusions, however, that Republicans can roll back eight years of Obama under Hillary. Even if they retain a majority, they will almost certainly be weaker, at least until the midterm elections. Historically, the opposition party gains seats in the midterms, but even then there is almost no chance of a 67 vote Republican majority.

While it would be preferable to have a Republican president to help pass conservative reforms, Donald Trump is no conservative and has shown little inclination to work with his party. If Trump becomes president and Republicans lose Congress, he could not be trusted to nominate constructionist judges or veto gun control bills. He cannot be trusted to support religious liberty. There is a high probability that he would act with liberal Democrats like Bernie Sanders to scuttle free trade agreements and military alliances.

With Trump falling to the 30 percent range in many polls and trailing in most swing states, there is little chance of a recovery. Republican funds would be better spent on tossup congressional races to preserve the Republican majority than in attempting to shore up a candidate who is biting the hand that feeds him.

If the choice is between an unreliable President Trump and a Republican Senate that has shown its mettle, I’ll throw in my lot with the congressional Republicans.

Originally published on The Resurgent

Voters want Obama to work with Congress… and vice versa

Two new polls show that voters do not want the governmental gridlock to continue next year. The most recent poll, released on December 17 by Rasmussen, shows that an overwhelming majority of voters think that President Obama and Congress should work together to achieve what is best for the country. Eighty-two percent told Rasmussen that they would prefer that Democrats and Republicans work together rather than to stand firm on their principles.

The Rasmussen poll mirrors a McClatchy-Marist poll from earlier in the week that found similar results. The McClatchy poll, taken before negotiations on the cromnibus were completed, found that 70 percent favored compromise. As some members of both parties pushed for a government shutdown over the budget battle, only 26 percent of voters approved of shutting the government down over a stand on principle.

The new polling is substantially unchanged from a Gallup poll taken before the election and several polls that preceded the 2013 government shutdown. Voters have consistently valued functional government over strict principles.

This is contrary to the view of many partisans on both sides of the aisle. Most notably, conservative radio host, Rush Limbaugh, said after the election, “You do not have election results like we had yesterday with the intent being that the voters intend the winners to work with the losers. This election was about stopping the losers, in this case the Democrats.”

While Limbaugh is correct that most voters (48 percent according to McClatchy) favor an agenda in Washington that is set by Republicans, they clearly reject obstructionism. The compromise on the cromnibus was a reflection of voter desires bypass partisan difference and repair dysfunctional government.

 

Read the full article on Examiner.com

Majority calls Obama a failure

A new poll from the Washington Post and ABC News released on Tuesday shows that a majority of Americans believe that Barack Obama is a failure as president. Fifty-two percent of registered voters say that the Obama Administration has been a failure while only 42 percent call it a success.

The poll also found that voters disapprove of Obama’s handling of a variety of issues by strong margins. Obama’s overall approval as president and his handling of the economy were both at 41 percent. Approval for international affairs and the handling of the health law was at 38 percent. Obama’s handling of immigration had the approval of only 31 percent.

Thirty-one percent also believe that the country is on the wrong track. Seventy-four percent are dissatisfied with the way the federal government works. Of these, 25 percent are angry at the federal government.

Most voters feel that Obama is not a strong leader (55 percent) and is too cautious in international affairs (53 percent). Fifty-five percent believe that he has done more to divide the country than unite it. On the other hand, even after numerous scandals, a slight majority (49 percent) believe that he is honest and trustworthy and understands the problems of people like them.

With respect to the upcoming election, 35 percent rate the economy and jobs as the most important issue. At the same time, 69 percent rate the economy as poor or not so good. Voters believe that Republicans can do a better job on the economy by a 45-40 margin.

On Obamacare, 52 percent of voters disapprove while 43 percent favor the law. Even though most voters dislike the law, 57 percent think that it should go ahead. Only 39 percent of voters favor a repeal of Obamacare.

The news is not all bad for Democrats, however. Only 15 percent approve of Congress, but congressional Democrats have a higher approval rating (33 percent) than Republicans (21 percent). Forty-five percent approve of the job that their own representative is doing. Democrat voters are also more enthusiastic about voting (71 percent) than Republicans (63 percent).

The most heartening item for the Democrats may be in an analysis of the demographics of the poll by the Washington Post’s Aaron Blake. Blake points out that while 25 percent of Democrats and 29 percent of liberals consider Obama a failure, there is one important demographic group that considers him a success. Moderate voters consider Obama a success by a slight margin (48-44 percent). This is the group that decides many elections.

 

Read the full article on National Elections Examiner

Why did Obama go to Congress on Syria?

 

Late last week, President Obama abruptly decided to send a request for authorization to use force in Syria to Congress. The about-face came after several days of claims by aides that the president did not need permission from Congress to act. In fact, in a speech on Saturday, President Obama still denied that he needed permission from Congress and sources in the Administration told Press TV that the president had already made up his mind to strike Syria, even if Congress failed to give its approval.

Why did the president decide to seek congressional approval if he believes that he doesn’t need it and his mind is already made up? Obama has a long history of overstepping his constitutional authority in domestic matters so why does he suddenly feel the need to go to Congress when there is ample precedent for conducting limited attacks without congressional approval? Two years ago when Obama went to war in Libya, he not only did not ask for congressional authorization for the initial use of military force, but did not comply with the time limits of the War Powers Act, denying that U.S. forces were engaged in hostilities under the law, a position that Politifact said “violates our standards of common sense.”

There are three reasons that Obama may have moved the ball into Congress’ court. The first is that he wants to use the issue to split the Republican Party. There is an intense debate between the GOP’s foreign policy hawks and the party’s libertarian isolationist wing. Prominent Republicans like John Boehner, Lindsay Graham and John McCain have lined up to support the attack on Syria while Rand Paul and Ted Cruz have spoken out against it. Marco Rubio, who has advocated aiding the Syrian rebels for two years, seems to think that Obama’s response is too little, too late according to US News.

The downside to this strategy is that it has split Democrats as well. For the past half century, the Democrats have been the anti-war party (with the notable exception of President Clinton’s intervention in Bosnia). Florida Democrat Alan Grayson told the Australian that he believes as many as half of all Democrats will vote against the authorization.

Another motive may have been to share the blame if the intervention goes badly. President Obama’s foreign policy has led to a string of disasters from the expansion of Iran’s sphere of influence to include Iraq to the resurgence of al Qaeda and the rise of radical Islamism in many formerly secular Arab nations. Obama may well be looking at protecting himself politically if limited strikes ignite a wider war or lead to a victory by al Qaeda-supported rebels.

A key to understanding Obama’s flip-flop is the strong public opposition to attacking Syria. A Reuters/Ipsos poll released Sept. 3 shows that only 19 percent support an attack on Syria. Fifty-six percent oppose any intervention. A Washington Post/ABC poll released the same day showed 59 percent opposed. Opposition was almost identical for both Republicans (55 percent) and Democrats (54 percent), but stronger (66 percent) among independents.

A final possibility is that Obama is having second thoughts about attacking Syria and is hoping that Congress will deny the authorization to attack. Almost as soon as Obama announced his decision to attack, Administration sources began to leak information that indicated that the attacks would be very limited and half-hearted.

Yesterday, Obama tried to walk back his statement from a year ago that Assad’s use of chemical weapons was a “red line” that would “change my calculus” on intervention in Syria. According to Politico, the president’s new line is that “I didn’t set a red line. The world set a red line.” Obama continued, “So when I said that my calculus would be altered by chemical weapons, which the overall consensus of humanity says is wrong — that’s not something I just made up. I didn’t pick it out of thin air. My credibility is not on the line. The international community’s credibility is on the line, and America and Congress’s credibility’s on the line.”

Although four months ago, White House officials made clear that the red line was “absolutely” the president’s, Obama is obviously having second thoughts in the face of overwhelming opposition. In spite of strong rhetoric from officials that the strike will happen regardless of Congress’ approval, it is unlikely that President Obama would make such an unpopular decision after being turned down by Congress.

A congressional defeat of Obama’s request may be likely. Political analyst Charlie Cook told the Financial Times on Tuesday that he would be surprised is the authorization passed Congress. A Washington Post analysis found the Senate split and heavy opposition in the House. Many members of both houses are still undecided.

Having stirred up a hornet’s nest of strong bipartisan opposition as well as finding little international support, President Obama may actually be hoping for Congress to deny his request. A loss in Congress would give the president the ability to avoid attacking Syria and the ability to save face by blaming Republican lawmakers.

Originally published on Elections Examiner

Barack Obama as a benevolent dictator

The White House quietly announced on Wednesday that members of Congress can still their federal health insurance subsidies in spite of a clause in the Affordable Care Act that specifically says otherwise. The law requires members of Congress to purchase unsubsidized insurance on Obamacare’s new exchanges “notwithstanding any other provision of law.” Obama made a “personally request” that his Office of Personnel Management continue to pay the subsidies to congressional members and staffers with salaries as high as $175,000 according to the Wall St. Journal. In response, the OPM decided to interpret the clause completely opposite from the way it has been traditionally understood.

According to NPR, the prospect that Congress would have to pay the same insurance rates as the rest of the country led to a “bipartisan uproar” and fears of a “brain drain” as staffers retired to keep their benefits. When rumors of a congressional exemption became public last April, a Rasmussen poll indicated that 95 percent of Americans believed that Congress should face the same requirements as all other Americans. It would have been a political nightmare for Democrats in Congress to enact legislation exempting themselves from an unpopular law just prior to a hotly contested election. Fortunately for Congress, President Obama stepped in to save the day.

“No one so far who's really looked at this sees a legal way for them to do this,” Ed Haislmaier, a senior research fellow at the Heritage Foundation told NPR. Haislmaier is one of the authors of a paper detailing the congressional health insurance problem and argues that only Congress could pass legislation to deal with it.

“Believe me, the idea of doing things on my own is very tempting,” President Obama said in July 2011. He continued, “But that's not how -- that's not how our system works…. That’s not how our Constitution is written.” The evidence shows that Barack Obama has succumbed to this temptation, not once, but many times.

The move to exempt Congress from Obamacare comes only a few weeks after President Obama also unilaterally delayed the implementation of the Affordable Care Act’s employer mandate. On July 3, the White House announced the president’s decision to not require that businesses provide their employees with health insurance until 2015 according to The Hill. The law does not give the president the authority to delay implementation of the mandate, one of the central tenets of his signature piece of legislation.

These decisions were not the first time that the Obama Administration had violated the requirements of the Affordable Care Act. Since the law’s passage in 2010, the Department of Health and Human Services issued more than 1,400 waivers that allowed businesses to not meet the law’s requirements according to the Daily Caller. The problem is that these waivers were not authorized by the Affordable Care Act. Instead, President Obama’s Health and Human Services department issued new rules and regulations that gave itself the power to waive the law. Congress did grant waiver authority to HHS in some aspects of the law, but not the provision that required businesses to increase the amount of health insurance provided to employees.

The Obama Administration’s disrespect for the rule of law is not limited to Obamacare. Less than four months into his presidency, in April 2009, President Obama unilaterally ordered the bailout of General Motors and Chrysler using TARP funds even though TARP was specifically limited to financial institutions by Congress. When the auto giants went bankrupt anyway, President Obama and his advisors ignored established bankruptcy law and placed politically favored unions ahead secured creditors. National Affairs details how the president browbeat investors, including pension funds for state retirees, to write off their losses and then put the auto companies under the control of his “car czar,” Steve Rattner.

It was also in the auto bankruptcies that the first hints of the Obama Administration’s targeting of political opponents became public. In the summer of 2009, rumors flew that the Administration’s car czar was targeting car dealerships owned by Republicans for closure while sparing the majority of Democratic dealerships. In September 2009, Factcheck.org denied the rumors, but with the recent revelations of the IRS targeting of conservative groups, two congressmen are calling for a new investigation of the Treasury Department’s role in closing the dealerships.

There are many other instances of President Obama’s executive overreach as well. In May 2010, after the Deepwater Horizon oil spill, Obama, again unilaterally, ordered a six month moratorium on deepwater oil drilling in the Gulf of Mexico. When a judge struck down the ban on drilling, Obama’s Interior Department ordered an almost identical ban the next day, an action that the judge to hold the Obama Administration in contempt of court. The contempt ruling was overturned in 2012 by a panel of judges though the order striking down the ban was upheld.

In April 2011, President Obama’s National Labor Relations Board filed a complaint against Boeing alleging that the company was engaged in illegal retaliation against unions by opening a new plant in the right-to-work state of South Carolina. Bloomberg notes that the complaint was suddenly dropped in December after Boeing reached an agreement with its machinist union.

In December 2010, President Obama’s FCC imposed “net neutrality” rules on internet companies by issuing a regulatory rule. According to CNET, the FCC had previously tried to impose net neutrality in 2008, but a three-judge panel ruled that Congress had not given the FCC the authority to regulate the network management policies of internet providers. When Congress failed to pass a net neutrality law, Obama’s FCC chairman imposed the rules anyway. A case challenging the FCC rules is currently before the Supreme Court.

In March 2011, even though President Obama had criticized President Bush’s decision to invade Iraq, Obama decided to intervene militarily in the Libyan civil war. Unlike President Bush, who sought approval from Congress as required by the Constitution and the War Powers Act, Obama gave the order to go to war in Libya unilaterally. Obama did not seek congressional approval for the war and denied that the War Powers Act applied.

In January 2012, Obama made three recess appointments to the National Labor Relations Board and one to the new federal Consumer Protection Bureau. While the Constitution does allow presidents to make recess appointments under certain circumstances, it requires Congress to actually be in recess when the appointments are made. Three federal courts ruled that Obama’s appointments were unconstitutional, but the NLRB simply ignored the rulings. The case was headed for the Supreme Court when Senate Democrats and Republicans reached a deal on the use of the filibuster. The deal may affect whether the Supreme Court hears the case.

In June 2012, as the election between Mitt Romney and Obama heated up, the president mobilized Hispanic support by unilaterally deciding not to enforce portions of current immigration law. Obama announced as part of his “We can’t wait” [for Congress to pass a law] campaign that he would stop deportation proceedings against young immigrants who had entered the country illegally. The decision derailed congressional work on the DREAM Act and was in direct violation of U.S. immigration law.

After the Newtown massacre, Obama bypassed Congress and issued 23 Executive Orders designed to further his gun control policies. According to Reuters, Obama said, “Where they [Congress] won’t act, I will.” Obama stopped short of ordering an assault weapons ban though he urged Congress to pass one.

Earlier in his presidency, Obama had asked Congress to pass cap-and-trade legislation to regulate carbon. Congress declined to pass the bill, even when Democrats controlled both houses, so President Obama is once again using executive agencies to legislate. The Washington Post reported in June 2013 that the EPA will use the Clean Air Act to impose carbon regulation on new coal and gas power plants.

To some extent, Obama’s executive actions are the result of an abdication by Congress. Timothy Lee pointed out in Forbes that the Affordable Care Act and the Dodd-Frank financial reform law both require thousands of pages of regulations that are written and enforced by unelected executive branch bureaucrats. Much of Obama’s executive overreach can be blamed on no one but Obama himself however.

Other aspects of Obama’s executive abuse are less benevolent. In May 2013, the IRS admitted to targeting conservative groups during the 2012 elections. Congressional investigations subsequently revealed that the IRS had been illegally working against Obama’s political opponents as early as August 2010 and possibly as early as 2008. Last week, the Federal Election Commission was implicated in the scandal as emails surfaced showing illegal collusion between FEC and the IRS officials investigating conservative groups according to CNN. On August 7, 2013, the Wall St. Journal reported that Democratic commissioners on the Securities and Exchange Commission tried to implement new rules on political contributions by public companies that would have also had the effect of making it more difficult for conservative groups to raise funds and speak out against Obama.

The sum total of Obama’s actions indicates that he may consider himself a benevolent dictator, an authoritarian ruler who acts for the benefit of the people rather than for himself. His repression of the free speech rights of his opponents is proof that a benevolent dictator is a dictator nonetheless. Rather than favoring the nation as a whole, Obama’s policies benefit favored demographic groups and political allies. President Obama’s “determined disregard” for the laws of the United States may be applauded by some who agree with his goals, but his actions set a disturbing precedent and raise grave questions about the future of the United States.

Originally published on Atlanta Conservative Examiner