Dear Media: Ask Dems, Obama If They Still Believe In Congress and the Separation of Powers

Barack Obama speaks during a Democratic fundraiser following a special performance of the Broadway show, 'Hamilton,' at the Richard Rodgers Theatre in New York, November 2, 2015. AFP PHOTO / SAUL LOEB
Ssul Loeb/AFP/Getty Images

Two more examples of President Obama performing end-runs around Congress and legislating from the White House are on display.

If members of the media wants to prove they can ask “tough questions” of Democrat presidential candidates too, they should grill Hillary Clinton and her putative rivals about whether they still believe in the Constitutional separation of powers, what purpose they think Congress serves, and how the Obama model of unlimited executive power can be squared with America’s republican system.

In fact, let’s just kick off the next debate by asking the Democrats what they think the word “republican” means. Wouldn’t that make for a fascinating civics lesson?

On Monday, The Hill reported on a leaked DHS memo which “reveals that the Obama administration is actively planning to circumvent a federal court injunction that suspended part of last November’s deferral-based amnesty initiative.”

Last June, four months after Texas federal judge Andrew Hanen’s order to freeze President’s DAPA and Expanded DACA programs—disclosure: the Immigration Reform Law Institute has filed briefs in these cases—DHS’s immigration policy makers apparently held a “Regulations Retreat” to discuss “different options” for “open market Employment Authorization Document (EAD) regulatory changes.” EAD is the statutory term for work permits. From a memo recording these discussions, we now know that the Obama DHS has, rather than pausing to allow the courts to assess the constitutionality of its enforcement nullification initiatives, been gearing up to roll out one or more of four plans drawn up at the meeting, each one designed to provide EADs to millions of non-immigrants, including those lawfully present and visa overstayers, crippling the actual employment-based visa system on the federal statute-book.

The internal memo reveals four options of varying expansiveness, with option 1 providing EADs to “all individuals living in the United States”, including illegal aliens, visa-overstayers, and H-1B guest-workers, while option 4 provides EADs only to those on certain unexpired non-immigrant visas. Giving EADs to any of the covered individuals, however, is in direct violation of Congress’s Immigration & Nationality Act and works to dramatically subvert our carefully wrought visa system.

Option 1 would effectively nullify Hansen’s order, which should get everyone involved in this little “regulations retreat” impeached and barred from government service for the rest of their lives, as a warning shot to every other bureaucrat who thinks a productive use of lavishly taxpayer-funded time is dreaming up ways to sabotage the Constitutional separation of powers and rule of law.

The Administration didn’t stop at undermining Judge Hansen’s court, either:

On top of working around the Hanen injunction, this DHS plan would also dole out unrestricted EADs to those on temporary non-immigrant visas, such as H-1B-holders (their work authorizations being tied to their employers) and another 5 to 6 million illegal aliens thus far not covered by any of the President’s deferred action amnesty programs. By claiming absolute authority to grant work authorization to any alien, regardless of status, DHS is in effect claiming it can unilaterally de-couple the 1986 IRCA work authorization statutes from the main body of U.S. visa law. While DHS must still observe the statutory requirements for issuing visas, the emerging doctrine concedes, the administration now claims unprecedented discretionary power to permit anyone inside our borders to work.

Does anyone have any further doubt that amnesty for illegal aliens is an act of pure tyranny, a direct assault on our Constitutional order and rule of law? This DHS memo constitutes a frank acknowledgement that amnesty-crazed politicians can’t get what they want through the republican process, by submitting legislation and winning support from actual American citizens and their representatives. The American people and their representatives will therefore be swept aside by administrative fiat.

The other Obama end-run around Congress involves “climate change,” which should come as no surprise, with no less than zillionaire Bill Gates of Microsoft explaining how the Church of Global Warming’s theology is fundamentally incompatible with representative self-government. (He also said it was incompatible with “capitalism,” which makes this a great “teachable moment.” We urgently need to educate anyone who thinks capitalism is not inextricably linked with representative self-government. When one falls, the other is sure to follow.)

The Hill reports Republican senators complaining that Obama is trying to commit America to international climate-change deals without submitting them to Congress:

Sen. John Barrasso (R-Wyo.), chairman of a Foreign Relations Committee subpanel, said at a Tuesday hearing that any deal negotiators reach at the talks in Paris in December needs to go through Senate ratification.

“Just like the Kyoto Protocol and the United Nations framework convention on climate change, any agreement that commits our nation to targets or timetables must go through the process established by the founders in our Constitution. It must be submitted to the United States Senate for its advice and consent,” Barrasso told Todd Stern, the State Department’s top negotiator for the deal.

“The president has made clear that he doesn’t see it that way, as was the case with the Iranian nuclear deal,” he said.

Barrasso was the only Republican at the hearing, which was dominated by Democrats who thanked Stern for his work.

Sen. Jim Inhofe (R-Okla.), who wanted to have a joint hearing on the talks with the Environment and Public Works Committee, which he chairs, said in a statement that the deal should go through the Senate.

“While we can certainly disagree on the underlying policies, I believe we, as the Senate, should support basic oversight responsibilities, especially when they are consistent with past practice.”

“President Obama and his administrative officials are going out of their way to circumvent the role of the U.S. Senate in this negotiating process and I am disappointed that the minority would enable such behavior,” he said.

Note that Senator Inhofe said he was disappointed, not that he was surprised. Senator Barrasso is right to compare this process to the Iranian nuclear deal, where President Obama used the United Nations as a chisel to chip the American people and their representatives out of the process.

The media should pose some very hard questions about the separation of powers to Democrats, asking what role they think Congress plays in the new Super-Executive model, if they support abandoning the Constitutional separation of powers without going through the proper amendment process, and when they think it would be wrong for the new Super-Executive to write laws. The Supreme Court is writing laws these days too, having rewritten ObamaCare a few times to keep it alive, so it appears the weakest legislative body in modern American government is the legislature.

These are serious questions worthy of substantive answers, not sound-bite gotchas intended to make Democrats look like tinpot dictators.

There are reasons the three branches were made co-equal. There are reasons we were given a rambunctious House of Representatives to serve as a check against executive ambition and federal profligacy. Laws are supposed to be debated and passed by representatives of the American people (and of the states, although that idea died with the Seventeenth Amendment.) It’s supposed to be difficult to get sweeping changes and expensive programs through the legislature. In fact, it’s not really mean to be just an emergency brake on executive ambition – Congress was meant to be the source of laws the executive proceeded to execute.

By convincing people to view Congress as a do-nothing pit of gridlocking obstructionists, the Left fooled the American people into giving away their voice in government. The result is an environment where it’s no longer considered above-the-fold news when the executive branch conspires to subvert Congress and the courts.

We are being conditioned to accept nominally “benevolent” tyranny, checked only by a single popular election every four years. Every presidential candidate who supports this subversion of the Constitution should be asked how far they’re planning to take it, and why they don’t respect the American people enough to entrust them with representative government any more.


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