Ignoring History: The Lawlessness of Obama Executive Orders

On Tuesday, the Senate overwhelmingly passed the National Defense Authorization Act 91-3, leaving President Obama no choice but to sign it in lieu of suffering a humiliating veto override. Within the act, there is a provision banning the President from moving the enemy combatants held at Guantanamo Bay (GITMO) into the United States or third countries, thereby blocking the President from fulfilling his wrongheaded campaign promise in a stunningly bipartisan fashion.

Not to be deterred by an act of Congress (he is only an inveterate invertebrate when dealing with real enemies like Russia and Iran after all), the White House has hinted the President may use executive powers to flout popular will and bring detainees into the US anyway. Some like Senator Dianne Feinstein and others are suggesting the President could have the authority to do this under his Constitutional Powers as our Commander-in-Chief. They argue the President has essentially unlimited powers over just about any tactical decision in war-time. Funny, precisely these arguments have been made before, only to be blasted in one of the most important Supreme Court decisions you probably haven’t heard about (more on that below!).

These current arguments calling for more power to be placed in the executive are particularly rich, coming in a week when a Federal Appeals Court upheld an injunction on Obama’s executive order rewriting our nation’s immigration laws. Now, the President is turning to the Supreme Court hoping for a more receptive hearing; however, the case in favor of his order is so dubious he spent years explaining how he couldn’t “fix” immigration laws by executive fiat.

One’s view of the constitutionality of his immigration order and potential GITMO one should transcend your view of whether they are wise policy. The core issue is exactly how much power is vested in each branch of government, not whether the underlying policy is well-intentioned. While questions of process often illicit droopy eyes, its importance cannot be understated. Our founders built an intricate system of checks and balances to carefully ward off tyranny, and upsets in this balance can have long-lasting implications. We can take for granted how much of a historical (and sadly even contemporary) anomaly the peaceful transition of power we enjoy every Inauguration day is.

I’m not saying we are on the verge of despotic rule; the issue here is cut and dry so there is no need to hyperbolize. Rather, it is about ensuring that powers remain at the proper branch to avoid the tyranny of one branch over another at the expense of public’s will. Allowing power to wrongly accumulate risks an incremental, creeping tyranny. For 85 years, we have seen more power coalesce around the Presidency, primarily at the expense of the legislature, a phenomenon that has happened under both parties’ watch, to the point where congressional law at times feel like mere guidelines for the President. Here on GITMO in particular, we have a congress asserting its right, but a President looking to ignore it anyway, the public’s opinion be damned.

In actuality (where I happen to live), this is not an unprecedented situation, rather there is a specific precedent that crystallizes the illegality of such an executive order. In 1950, Harry Truman was President, and we were waging war in the Korea Peninsula. Truman faced a steelworker’s strike, which would have disrupted the supply of arms to our forces. Truman saw keeping steel mills open as a matter of national security. Now, Congress had passed two laws, the Taft-Hartley Act and the Selective Service Act (its applicability in this case can be debated), which could have been used to keep the mills operating. Instead, he circumvented the will of Congress and unilaterally seized the plants to be run under the watchful eye of the Federal Government. Believe it or not, legal calamity ensued.

In a 6 to 3 decision in Youngstown v. Sawyer, the Court delivered one of the biggest pushbacks against a Presidential power grab in the century. Truman’s argument that his war powers granted him the ability to seize private property was found sorely wanting. In his concurring opinion (which is the opinion whose influence has endured time in this case), Justice Robert Jackson explained the three tiers of Presidential power (courtesy of Findlaw, emphasis mine):

  1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, [343 U.S. 579, 636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government [343 U.S. 579, 637] as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
  2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
  3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [343 U.S. 579, 638] the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Essentially, Jackson believes the Court needs to view Presidential power in three ways. In the first situation when the President is acting thanks to an act of congress, he has the most authority (both his and Congress’s combined). In the second, Congress is silent, which could lead to a fuzzy gray area over whether it is Congressional or Presidential authority. This means the President is not due the same level of deference as when Congress acts alongside him. In the third situation, the President acts against an act of Congress (either clear or implied), so his power is at the lowest ebb because the Court needs to disable Congress’s ability to legislate in that area. As such, the Court would be ruling for the President and against the Congress, threatening the balance of powers.

Incidentally, the President’s immigration executive order falls squarely into the third category where he is trying to move directly against the intent of our immigration laws. As congress indisputably has the authority to write our immigration laws, the President’s power here is non-existent, and his executive order is blatantly lawless.

Now while Gitmo also clearly falls into the third category, it is a bit trickier constitutionally as the President definitely has more power when it comes to waging war than in domestic affairs, though this power is not absolute. In Youngstown, Jackson found Truman was in the third scenario as well—the parallel fortuitously continues. The Court did determine that Congressional laws dictating the process for dealing with strikes (that were totally ignored by Truman) were still relevant during war-time as the powers of the Commander-in-Chief are actually “cryptic” to quote Jackson contrary to what Obama’s cheering squad now suggests. Jackson goes on (emphasis mine):

He has no monopoly of “war powers,” whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the “Government and Regulation of land and naval Forces,” by which it may to some unknown extent impinge upon even command functions.

This statement clearly goes against the pre-planned argument from Obama’s allies that Congress is meddling in tactical matters. That fact is not in and of itself problematic, particularly because we are dealing in part with an internal issue where the President would be bringing enemy combatants into the United States itself. Jackson eloquently notes the danger of letting a President use his foreign powers to assert additional powers within our borders (emphasis mine):

But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture….

 

This argument holds whether we are dealing with enemy combatants or steel plants. The idea our elected representatives would be powerless over what happens within our country is abhorrent to the very essence of democracy. Moreover, this line of attack doesn’t just come from our Courts, it is directly address by our founders themselves. Jackson again (emphasis mine if you hadn’t caught on by now):

That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. Time out of mind, and even now in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Thus, even in war time, his seizure of needed military housing must be authorized by Congress.

Our founders went out of their way to expressly give our Congress legislative power in a tactical matter (housing soldiers) when it occurs on our soil. Ironically, many feel like the 3rd amendment is quaint if not anachronistic, serving no purpose in a modern society such as ours. They are wrong as the wider applicability is clear. The founders did not envision a President being able to take total power, Roman dictator style, during a time of war. They went out of their way to carve a role for Congress when the matters of war are internal in nature. How often in the course of human history have we seen dictators use foreign adventures as an excuse to tighten their grip back home? That is anathema to our carefully crafted constitution, ensuring democracy and balanced powers in peace and war time alike.

Given this reasoning, it isn’t hard to see that Congressional laws in that 1952 case were relevant and that Truman over-stepped. Was Truman attempting to become a dictator? Of course not; in totality, he was still one of our finer Presidents. This was merely a case where he reached too far in a time of war, and the Supreme Court took the opportunity to draw a clear line in the sand regarding Presidential power. By the same token, one doesn’t have to think Obama is a dictator to find his executive orders to be an overreach.

If there is any cogent argument differentiating a GITMO executive order from Truman’s in Youngstown v. Sawyer, I have yet to come across it. With Obama planning to sign the NDAA that has GITMO restrictions, any executive order would clearly fall in Jackson’s third scenario (contradiction with Congress’s intent) where Presidential authority is at its weakest. Bringing detainees into the United States proper is without a doubt an internal matter, giving Congress the constitutional power to legislate on the issue. That simple fact evaporates what legs that aspect of order stands on.

What about the aspect of the law that bans the President from sending detainees to Libya, Syria, or elsewhere? Does the fact the United States proper is not involved negate the specific “internal” Congressional powers implied by the 3rd amendment? In short, no. In 2008’s Boumediene v. Bush, Justice Anthony Kennedy’s majority opinion makes clear the US has “de facto” sovereignty over GITMO, making the fundamental rights of the constitution applicable there. This ruling functionally makes GITMO “internal,” providing Congress with authority. In other words, Congress has the power to put restrictions on the closure of GITMO and transfer inmates anywhere, not just to the United States but to Libya and other third countries as well.

Looking at simple Supreme Court precedent underlines the sheer lawlessness of Obama’s plans. In Youngstown, Presidential powers are clearly delineated, and on both immigration (where Courts are already standing up) and GITMO (where an executive order may be in the works), his power is at its nadir. Plus, it now appears Democrats plan to argue that being in war gives a President absolute power (funny, it seems like just 8 years ago they argued the opposite), but this does not jive with our history or the obvious intent of our founders and is really an effort to stack powers inside an Imperial President. No matter your policy preference, this is dangerous as it takes power away from the power of the people’s representatives in Congress who are a necessary check. Our constitutional balance of power is a delicate one; we mustn’t unnecessarily tamper with it and risk breaking it for our next generation. Certainly not to score cheap political points.

Obama has been fond of shamelessly saying Republicans want a return to the 1950’s for women’s rights. Well, it appears in his zeal over studying 1950’s contraception policy, he skipped over that decade’s constitutional lessons. Ironic; he was a constitutional professor after all. Must’ve skipped those classes.

 

Paul Ryan, Unlike Hillary Clinton, Is the Kind of Leader We Need

In the weeks after Speaker John Boehner’s announced his resignation, two facts have become clear if not irrefutable:

  1. Paul Ryan is the only person capable of getting the required 218 votes to become Speaker of the House
  2. Paul Ryan has absolutely no interest in being Speaker of the House

Now for the past two weeks, national Republicans have subjected Ryan to a full court press to become Speaker. Eventually, I suspect Ryan will capitulate because he can see as clearly as anyone else that no one else can actually do the job (reports suggest he is getting closer to “yes”). Ultimately, the country (and the Republican Party) needs someone to be Speaker of the House to keep the House from descending into total dysfunction. That said the very reason why Ryan would be such a great Speaker is the only reason why he may not be Speaker: he doesn’t want the job.

Democracy demands leaders who seek power not for personal gain but for the betterment of the nation. Voters should run, not walk, from self-aggrandizing candidates, seeking power just for the sake of wielding it. As an aside, this is a fundamental flaw in Hillary Clinton’s campaign for the Presidency. She seems to run only because she wants to be President to have her name etched in the History books rather than because she feels compelled to fix serious problems (of which we have numerous, thanks in large part to the current President). Heck when asked to explain how her Presidency would be different from Obama’s at the debate, all she could muster as an answer was that she’s a woman. If the underlying rationale for seeking the most important job on the planet is your gender, one really has to wonder if you are running to better the nation or merely to stroke your ego and wield power you have felt entitled to for years.

Politicians who seek power for power’s sake will lie, cheat and steal to attain power; they will do the same to keep it. Nixon’s Watergate and Hillary’s private server are examples of this. Unfortunately, we also see individuals who begin their careers seeking to better the country gradually succumb to the allure of power over time, trading their principles for political self-preservation; hence, the often widespread support of term limits among voters to counteract this reality.

As voters, we should not only avoid politicians who seek power for their own sake; we should also seek out politicians seeking to better the country. We are better off with leaders whom we agree with 80% of the time (or even less) but have clear guiding principles than leaders whom pander to us 100% of the time for the sake of jumping in opinion polls. If a leader can’t be trusted to be honest, that individual is unfit to serve.             That brings us back to Paul Ryan, the anti-Hillary. So much of the distrust felt towards House Leadership by the Freedom Caucus and grassroots base was the (often unfair) belief Boehner et al focused on staying in the good graces of K Street than fighting for conservative principles. Tactical disagreements quickly became a referendum on the personal character of leadership. In Ryan, we’d have a leader who doesn’t even want the job but is serving for the sake of the country. That fact gives him, and the deals he strikes, more credibility, making it easier for him to govern and lead a fractious GOP majority. Ryan can’t change the reality that Obama is still the President, but he has been offering specific, conservative solutions for longer than anyone else in the House.             Ryan leaving the Ways and Means chairmanship he so loves to assume the Speakership would be one of the clearest example of a politician putting the needs of the country ahead of personal ambitions in years. After all, he already chairs the most powerful committee in the House, which is also suited for his wonky tendencies, and is currently positioned to be the critical player in the next President’s efforts to reform our inefficient tax code. He’d be taking a thankless job where he is basically a glorified psychologist for 246 bloated egos, herding cats, and dealing with a President who has no interest in doing anything other than score political points for the next 15 months. It’s no surprise he doesn’t want the job. If anything, his path to the Presidency over the next 15 years would be complicated by becoming speaker.             We need a Congress that works for the public, prioritizing the needs of the country, and that starts with selfless congressional leadership. Ryan would fundamentally alter the paradigm of long-serving Washington insiders taking power. Instead, we would have a Speaker primarily interested in policy and in governing who has spent a decade explaining a hopeful, conservative vision for the country.

What a powerful contrast to a Democratic Presidential frontrunner who has spent years adding job titles to her resume without accomplishing much, except for finding new ways to break the laws and violate the public’s trust. In Ryan, we’d have a People’s Speaker in the People’s House.

We Need Paul Ryan

Well, it’s safe to say the House Republican Caucus has descended into total disarray after Majority Leader Kevin McCarthy unceremoniously bowed out of the Speaker’s race. While I continue to believe Boehner stepping aside was a good thing (or at least a necessary action given the loss of trust—fair or not—amongst conservative members), the situation has descended from bad to worse as seemingly no qualified candidate is interested in what may be the most thankless job in Washington.

It’s clear now that McCarthy’s horrible Benghazi remarks undermined his ability to win over skeptical anti-establishment figures like those in the self-described Freedom Caucus. Whoever the next Speaker is, he or she needs to be an adept spokesperson for the party and conservative principles. Realizing he could no more effectively govern than Boehner has, McCarthy did what was best for his country, institution, and party by stepping aside.

Now, it is a question of who steps forward to lead what often seems to be an ungovernable caucus that is now suffering from virtually unprecedented internal strife (if not civil war). The tension between the establishment and right flank of the caucus has been building for years, especially since the ill-fated shutdown of 2013 that achieved nothing. The establishment sees the “conservatives” as uncompromising idealists who fail to bend to political realities while the “conservatives” see the establishment as wimps unwilling to fight for campaign promises. Both sides are partly right and partly wrong.

Until the party can unify, chaos will persist, but these divides are bridgeable. Most of these intra-party disputes revolve around tactics not policy (ie virtually all republicans want to defund Planned Parenthood, the question is how best to go about it). We need a Speaker who has the support of the establishment and the trust of conservatives. Conservatives saw in Boehner (and by extension McCarthy) a leader unwilling to fight; again whether this is fair or not is almost irrelevant because perception becomes reality. By losing the trust of conservatives, he lost their buy-in on key measures, making it impossible to have any leverage in negotiations with Democrats.

Given the sheer duration of this intra-party battle, few members have the capacity to earn the support and trust of all GOP representatives, which is why Paul Ryan needs to step up and lead. Ryan has proven himself to be a thoughtful policymaker with a bold vision of what a conservative America can look like as witnessed by his budget plans. Ryan has the ability to maintain the support of the “Boehner core” while winning the trust of the anti-establishment to negotiate seriously with the President.

Ryan’s conservative bona fides are all but untouchable with budget plans that have shaped the core of conservative fiscal thinking, and he also has the proven ability to cut a deal when necessary as he did with Senator Patty Murray to partly deal with sequestration. He is the man best positioned to unify and lead the party—in fact with the possible exception of Trey Gowdy it is unclear to me any other House member could build the necessary support to be Speaker. Plus, despite some suggestions to the contrary, the idea of selecting someone who isn’t a member of Congress as Speaker is short-sided. What does it say about a party that has over 240 members and can’t find a suitable person to lead; having an unelected individual be the face of the party is politically perilous.

Sadly, it is clear Ryan does not want the job and would prefer to stay Chair of Ways and Mean, a perch from which he can negotiate tax reform with the next President. Plus, becoming Speaker would require significant personal sacrifice, keeping him from his family as he has to fundraise and campaign for fellow members. However, at this moment, this country needs Ryan as Speaker so that we can have a Congress that functions to some degree. As Speaker, Ryan would still be heavily involved in tax reform and any other major policy initiatives. Plus, the Republicans will likely maintain control of the House through the 2020 election, meaning Ryan could easily be Speaker for north of 7 years (if not longer), which would give him the ability to shape the course this nation takes to a larger degree than as a committee chair. Since he is only 45, he could be a major force in DC for quite a while and still have a plausible path to the Presidency, should it interest him.

America and Republicans need Paul Ryan, and while the personal and family sacrifices are real, I hope he is able to find a way to “yes.” At the moment, republicans look like buffoons, and should this continue, 2016 election prospects could start to dim. After all if the GOP can’t even pick a Speaker, how can we expect voters to entrust us to govern the country? The Republicans still have a chance to steal a victory from the jaws of a humiliating defeat if we can find a Speaker whom the caucus will follow. Given his ability to articulate a conservative vision, unify the caucus, regain the trust of conservatives (both in the Caucus and in the Grassroots), and work with Democrats when necessary, Paul Ryan is the best if not the only choice for Speaker.

Representative Ryan, your country and your party are clamoring for you. Please say yes.

Boehner Must Go

While exiting the Presidential race, Wisconsin Governor Scott Walker called on others to step aside and allow the field to narrow. Sometimes, the best thing a leader can do is step away and let someone else step forward. While I doubt many Presidential contenders will be heeding Walker’s call, I hope Speaker John Boehner does. The time has come for Boehner to go.

Once again, we stand at the precipice of a government shutdown (a mere nine days away), and Boehner seems paralyzed, unable to find a compromise that could appease his conservative critics while netting Obama’s signature. This is a situation Republicans repeatedly find themselves in as deadlines approach—forced to fold at the last moment or risk politically unpopular shutdowns instead of crafting some sort of tenable strategy. Now in many ways, I feel sympathy for Boehner. There is a group of around 30 uncompromising republicans (known as the Freedom Caucus), constantly causing him problems. He is then forced to grovel for Democrats’ vote to pass bills the President will sign. It truly is an unenviable job. However, it is a job best suited for someone else.

For a leader to be effective, he or she needs buy-in from the troops. A great plan only works when those who have to execute on it believe in it. Great leaders from Churchill to Patton to Martin Luther King earned and built respect, loyalty and trust amongst their soldiers, citizens, and followers. Without that, even the most well thought-out plans are doomed to failure. This is where the rationale for a continued Boehner speakership collapses. Boehner does not face an ideological deficit; he lacks trust, primarily over tactics. Boehner has a history of being opposed to abortion and Planned Parenthood, of opposing Obamacare (those who doubt his conviction should re-watch his moving speech opposing passage as Minority Leadership), and supporting fiscal sanity.

Boehner wants to separate the Planned Parenthood funding issue from keeping the government open, and Freedom Caucus members recognize that once separated out, President Obama will veto an effort to defund Planned Parenthood if the Senate is able to move on it (unlikely). By the same token, attach it to a continuing resolution, and Senate democrats or Obama again block it, shutting down the government. In reality, the Democrats are responsible for shutting down the government to keep open an organization in the business of brutally ending the lives of potential human beings to sell the body parts for profit. However, the media will blame republicans—that is unfair but is the reality of the world we live in. Plus given our push for smaller government, shutdowns (which are politically unpopular) tend to be blamed on republicans by voters. Heading into a critical election year, the GOP cannot afford too much of a hit to its brand and will be forced to cave, reopening the government and funding Planned Parenthood after a few days or weeks.

This is the problem of the Boehner speakership. He says the right things but is unable to accomplish almost anything. After winning re-election in 2012, Obama had no incentive to work with republicans. It has left me wondering what the point of winning control of Congress was. Since 2013, has Boehner been able to push through a single significant conservative priority? No. Anything would be vetoed by Obama, even after republicans retook the Senate. Seemingly, the only value in controlling congress is blocking Obama from doing bad stuff, but as showcased by the enactment of the Iran deal, Republicans don’t even wield that power particularly well!

Now, some conservatives can be guilty of over-promising; for instance, it was disingenuous of Senator Cruz to argue that shutting down the government would lead to the repeal of Obamacare. No President is going to repeal their signature law. However, Boehner has been unable to craft a strategy to net any major victories. His ineptitude has cost him the trust of several dozen members, and with the House GOP divided, there is even less leverage when dealing with Obama.

Fighting over government shutdowns is risky business, and conservatives should focus their battles elsewhere. Controlling congress can limit the damage an incompetent President can do, but when he is unwilling to compromise, congress alone cannot accomplish much. This reality underpins how critical the 2016 election is; to achieve conservative objectives and not merely block liberal ones, we need to win back the White House. Election pledges that all we needed was a Republican congress to reset the course of the nation have been proven patently false.

As such, John Boehner has lost the confidence of many members and the public. Since Obama’s reelection, he has been unable to achieve any meaningful goals and has been consistently outmaneuvered by democrats, leaving the party only days away from government-funding deadlines. Rather than trying to craft an intelligent alternative (ie suspend the $528 million in PP funding pending an investigation of their activities and allocated $1.5 billion to responsible providers of women’s healthcare, thereby forcing Obama to turn down an extra billion if he wants to support this horrible organization), he has left the party in a no-win situation: either be blamed for a government shutdown and eventually cave or fund Planned Parenthood.

It is time for Boehner to do the right thing for party and country and step aside. The House could pass a short-term (3 month) continuing resolution and find a Speaker whom both conservatives and moderates can trust to act principally with strategies that can actually deliver small victories (conservatives need to be realistic about the chance for major policy victories in the final year of Obama’s Presidency). I would suggest someone like Paul Ryan or Tom Price with conservative credibility, gravitas, and an ability to keep the House operating. We need a leader that members can trust; members like Ryan and Price have already earned that trust unlike Boehner. Switching leaders would go a long way towards reunifying the Republican caucus.

John Boehner has served his country well and should be respected for his service, but now is the time for new blood. He has failed to deliver any conservative victories, has a mixed record in terms of blocking Obama’s agenda, has lost credibility amongst a growing portion of the caucus, and has failed to devise any strategy to get things done without butting against politically unfriendly deadlines. Having to scrounge for Democratic votes is not a plausible strategy for the next 16 months. Instead, we need a Speaker whom conservatives can trust to employ the proper tactics and still keep the House in order. Boehner is no longer that Speaker. It is time for a fresh face.