Poor Mr. Obama. To hear Colbert King tell the story, the President is being put in the impossible position of one of his great predecessors, Abraham Lincoln. In a piece in the Washington Post provocatively titled “A Rising Insurrection Against Obama,” Mr. King paints a picture of looming disaster for America akin to the Civil War. Like Lincoln, according to Mr. King, Mr. Obama is having his rightful authority questioned and undermined by a host of bigots and confederate sympathizers who put their own, reactionary vision above the Constitution and their duty to obey their Commander-in-Chief. From Arizona to the United States Senate, Mr. King argues, Republicans are denying the proper authority of Presidential orders so that they can further their own policy agenda and in the process tear the country apart, just as slaveholding southerners and their sympathizers did during the run-up to their great rebellion. Like the Great Emancipator himself, then, President Obama must be supported by all right-minded people so that we can put down this latest attack on constitutional government.
Of particular concern to Mr. King is a bill, passed by the Arizona House of Representatives, that “prohibits this state or any of its political subdivisions from using any personnel or financial resources to enforce, administer or cooperate with an executive order issued by the President of the U.S. that has not been affirmed by a vote of Congress and signed into law as prescribed by the U.S. Constitution.” This bill shows a certain ignorance of our constitutional processes. Executive Orders, properly so-called, do not require Congressional affirmation. What seems to bother a majority of the Arizona House of Representatives is that recent Executive Orders have looked, and acted, more like laws than the kinds of internal, executive branch housekeeping measures Executive Orders properly are.
Let us put aside, for the moment, such definitional issues and examine the source of Mr. King’s concern. He likens this and other bills passed by one house of the Arizona legislature to the nullification of federal laws. Nullification was a process engaged in a number of times by various states, most prominently on the issue of the federal tariff, during the early nineteenth century. And there are similarities of form between the Arizona measure and historical acts of nullification. Of course, Mr. King’s goal is to tie these actions in with a rather more sinister conflict than that over tariffs. He asserts that the bills call to mind the word “insurrection” and lambastes the Republican-led federal Congress for not leaping to the President’s defense. He even finds a “smoking gun” of insurrection in a phrase appearing three years ago in the newsletter of the Green County, Virginia Republican Party (since disavowed, and the author fired) about “armed revolution” should Mr. Obama win re-election. One only wishes Mr. King had a scintilla of this capacity for outrage in regard to the death threats, bullying, and political violence inflicted on individuals and public officials, including the Governor of Wisconsin, when they cross “progressive” extremists.
But let us focus on the demand for defense of the President. It apparently does not occur to Mr. King that there are some not-so-subtle distinctions between the conflicts that ultimately led to the Civil War and the sadly sparse opposition currently being mounted against Mr. Obama’s extension of executive power throughout the federal government and its use against states, localities, communities, and individual persons. He also seems not to be aware of any limits to Presidential power, including those silly little things explicitly enshrined in the Constitution, like, for example, the right of the Senate to provide advice and consent on treaties.
It seems some Senators wrote a letter to Iranian officials regarding nuclear treaty negotiations, and Majority Leader Mitch McConnell told some folks that they might want to consider the fact of the Senate’s advice and consent power in conducting negotiations with a President who has shown no desire to consult, respect, or even recognize the legislative branch. Horror of horror: We do not want other nations thinking we actually have a functioning Constitution that provides for checks and balances, do we? After all, that might “undermine” the President’s ability to do whatever he wants and bind the nation to his personal opinions and goals.
The same goes for domestic policy, of course. New Environmental Protection Agency mandates, which go far beyond the language of the statute they are supposed to be implementing, also are being “undermined,” according to Mr. King, because Mr. McConnell, currently stymied in any attempt to hold this Administration to the law, advised those chafing under the outlandish new proposals to “wait it out” and hope for a new, more rational set of rules down the road.
The real locus of much of the current debate over Presidential overreach is the set of Obama Administration Executive Orders suspending the deportation of millions of illegal immigrants. The administration has claimed that this action is merely a “common sense” solution to the impossibility of deporting so many people. Yet the very scope of the orders makes their legal justification—mere “prosecutorial discretion”—laughable. Moreover, the orders do not merely suspend federal action. They in effect require states to provide numerous supports for those in this country illegally, from medical to educational services and involving employment status. It should not be surprising that states where illegal immigration is particularly heavy should be particularly concerned about the impact of such executive decrees on their budgets, policies, and ability to maintain order and good governance. It also should not be surprising (though, sadly, it seems to be so) that the form in which these onerous policies are imposed, as mere decrees from a single federal official, should be particularly galling to people who look to their representatives in Congress to protect them from precisely this kind of federal imposition. After all, Mr. Obama issued the Executive Orders only after failing to secure the results he sought through proper legislation.
An Executive Order is not a law, at least not if it is to accord with our Constitution and with the very basis of our government; that basis is the separation of powers, in which Congress passes the laws, and the President executes—not rewrites, not “improves through common sense,” but carries out—those laws. An Executive Order is a rule of application for use within the executive branch; it is supposed to concern purely internal matters of administration, not the status and enforceability of actual laws. Thus, an Executive Order that purports to establish new rights and responsibilities for people and institutions outside the federal executive branch is, by its nature, unconstitutional.
The basis of the Arizona bills, the Senatorial letter, and the general concern of a significant proportion of the American people is not merely that policies with which they happen to disagree are being made into law. It is that the Executive, bound by the Constitution to see that the laws are faithfully executed, has taken it upon himself to make and unmake laws at will. Mr. King knows what he is demanding; he says early in his article, “I wish it could be said with confidence that the legislative branch would oppose a rebellion against the executive branch of government.” By “rebellion” he means something far less than a new Civil War. And this sums up the problem. Those who support Mr. Obama’s “progressive” policies demand that the rest of America accede in them, no matter how they are to be instituted.
It seems to have become increasingly difficult for members of either party in Washington (let us not forget the infamous attempts of the George W. Bush Administration to avoid duly enacted laws, particularly in the area of foreign policy) that the primary branch of government in any republic is the legislature. After years of corrupt Senatorial rule by Harry Reid, in which legislative business was brought to an intentional standstill in order to give the President free reign, we now have both Houses of Congress in the hands of a different Party. Neither House has what could credibly be called an aggressive leadership in terms of style, political philosophy, or even willingness to engage in political debate. But it is up to Congress, and the state legislatures, and the American people, to express their opposition to the vast powers being gathered into the Oval Office.
Slaveholding states sought to impose onerous requirements on the rest of the Union through fugitive slave laws that denied the most fundamental rights to accused escapees. Despite all the talk of “states’ rights,” they demanded, in effect, that their “peculiar institution” take precedence over the requirements of constitutional government. The attempt to liken policy disputes today, to battles over slavery and fundamental rights is a bullying tactic. The attempt to defend recent Presidential decrees as somehow intrinsically worthy of vigorous Congressional enforcement in the face of clear proof that they go far beyond the limits of our Constitution borders on the hysterical and should be given no credence. That such arguments have the prominence they now do attests to the intellectual bankruptcy of “progressives” as they seek to impose their program to the maximum extent possible, regardless of the consequences and with contempt, not just for their opponents, but for the procedural protections necessary for a lasting free government.
Books on the topic of this essay may be found in The Imaginative Conservative Bookstore.