By Roger J. Katz & Stephen D’Andrilli
New York, NY -(Ammoland.com)- President Barack Obama, as we have seen, demonstrates little restraint using the power of his Office to obtain what he wants.
The most powerful tool in a Chief Executive’s arsenal falls under the umbrella “executive directives.” These take the form of orders and proclamations, memoranda and signing statements.
But, in the absence of a legal source explaining distinctions among them, one may presume they are, in essence, the same.
When a U.S. President issues an executive directive, he is asserting, “this is what I want to do; this is what I intend to do; this is what I have done, why I have done it, and how and when it shall be carried out, and what Congress and the American People must do to recognize or to comply with it; so accept it!”
Presidential directives are then essentially declarations – much like edicts of a despot, such as a dictator, or a king, or other such autocratic ruling authority.
Presidential directives are not subject to debate by the public or even by Congress, and they are not subject to Legislative veto. Moreover, there is nothing in law that tells us how they may be used, when the President may use them, or how narrow or broad in scope they may be. There are no procedural safeguards that might otherwise impact the legality of them. Neither the U.S. Constitution, nor case law, defines what they are or how they may be properly used. But the danger that executive directives present to a free republic and to the foundation of that free republic, namely, the U.S. Constitution, is very real and ever present. In fact the only safeguard against executive directives – if you can call it a safeguard – is an opinion rendered by the Office of Legal Counsel. But, as we have seen, when a Chief Executive wishes to issue a directive, that Chief Executive calls upon the Office of Legal Counsel for the purpose not to tell the Chief Executive what he cannot do under the law but, rather, to give its imprimatur on what the Chief Executive has already decided to do; and the Office of Legal Counsel will almost invariably do whatever the Chief Executive wants. The Office of Legal Counsel of the Justice Department “licenses” the Chief Executive’s unilateral executive actions in the form of a legal opinion.
We have seen this before. Recall how Obama asked for and obtained, from the Office of Legal Counsel, “legal license” to usurp Congressional authority to regulate naturalization, allowing Mexicans, who came to this Country illegally, to remain in the Country indefinitely. Thus, the Office of legal Counsel, in the Department of Justice, wrote a lengthy opinion that demonstrably licenses Obama to circumvent Article 1, Section 1 of the U.S. Constitution that sets forth clearly, concisely and categorically: “all legislative Powers . . . shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives,” and Article 1, Section 8 of the Constitution says that “the Congress shall have Power to establish . . . a uniform rule of Naturalization.”
Now, there is nothing in the Constitution that tells us under what circumstances use of an executive directive happens to cohere with the U.S. Constitution. But, this does not mean that a President may use executive directives haphazardly.
There are guidelines, even if they are informal. The salient guideline is that embraced in the Separation of Powers Doctrine. Under Article 1, Section 1 of the Constitution, the duty to legislate the Laws of the Land rests solely with Congress. And, Article 2, Section 3 of the Constitution mandates that the President “shall take Care that the Laws be faithfully executed. . . .”
The President doesn’t take care to faithfully execute the laws of the Land when he makes law by executive fiat. For his actions then amount to subsuming the Legislative Branch into the Executive Branch. Moreover, reliance on a legal opinion of the Justice Department’s Office of Legal Counsel that simply rubber stamps what a President seeks to do does not constitute binding legal authority. But, then, the Justice Department, as a “rubber stamp” for the President operates, unfortunately, as one would expect. The Justice Department, after all, is not an independent organ of Government. It operates within the Executive Branch and will almost invariably do whatever “the Boss” wants it to do, even, and especially, as here, when the President uses the power of his Office with impunity, without regard to the legality of his actions.
Similarly, when a President says that he will take action when Congress doesn’t act, he is taunting Congress and threatening Congress.
The Boss is telling Congress what Congress must do. Congress, though, doesn’t work for the President. Congress works on behalf of the American people and is answerable to the American people, not to the President.
We see that Obama told Congress to reform immigration law and, when Congress failed to do so, Obama placed himself in the shoes of Congress and created immigration law himself. Hillary Clinton, too, has already strongly suggested that she will – if she, in a worst case scenario, became President of the United States – use executive directives with impunity to accomplish her goals, if Congress doesn’t act at her behest.
But, nothing in the annals of executive directive history, can possibly serve as preparation for Obama’s desired new escapade.
On January 2, 2016, in an article titled, “Obama and Attorney General to Discuss How to Curb Gun Violence” – tellingly, retitled in the digital version of the story as “Obama to Consider Executive Actions on Gun Violence” – the New York Times reported that Obama planed to meet with the Attorney General to discuss use of the Office of the Chief Executive to legislate new restrictive gun laws.
The NY Times article sets forth that, “facing the reality that lawmakers are unlikely to strengthen the country’s gun laws anytime soon, the administration has been looking at ways Mr. Obama can tighten gun sales unilaterally. . . .”
Once again, Obama is calling on the Office of Legal Counsel to render a legal opinion that will serve as a plausible, if not legally sound, basis for upholding an executive directive on his behalf. But, understand that a legal directive that impinges on and infringes the Second Amendment to the U.S. Constitution is not something to be dismissed as inconsequential to the continued existence of a free republic. It is one thing for Congress to enact restrictive gun laws – and Congressional Democrats have successfully done so in the past and are attempting to do so now – but it is quite another thing for the President to create antigun laws by executive fiat.
Those laws enacted by Congress are always subject to challenge in the U.S. Supreme Court. Executive directives, though, are not, which makes an executive antigun directive a preferred fallback position by which a Chief Executive might seek to “make law” he wants since that directive cannot be readily challenged in Court, even under the due process clause of the Fifth Amendment to the U.S. Constitution. But, then, if Obama dares to attack the Second Amendment, through the vehicle of a Presidential directive, such illegal action is of an order of magnitude beyond anything a sitting President has done before. In fact, an executive directive that directly impacts a fundamental right amounts to nothing less than a takeover of Government.
We must repeat that. If Obama uses the Office of the Presidency to undermine the Second Amendment to the U.S. Constitution, any such executive action amounts to a coup d’état of Government.
Obama cannot convincingly rationalize, let alone justify, either to the American public or to Congress, that he has authority to make law negatively impacting a fundamental right of the people when Congress won’t act. Obama has no such authority. Nor can Obama reasonably argue that he is authorized to take such action on the basis of morality. Morality doesn’t trump law. And, in any event, one might more sensibly argue that, for a President to disrespect the Separation of Powers Doctrine, this is, itself, immoral, as well as patently illegal. Nor can Obama justify such unilateral action on the ground that Great Britain and Australia have tight regulations on guns, so we must have them as well. Those Countries do not operate under our system of laws. Their Constitutions are markedly different from ours. And whatever actions those Countries take are not, in any event, legally, logically, or morally binding on the United States. International laws and the constitutions of other Countries, and the new concerns and demands of globalization do not trump U.S. law and the U.S. Constitution.
Whatever impact globalization has on economic and military policy of this Nation, such globalization issues have absolutely no bearing on the efficacy and supremacy of U.S. jurisprudence and on the efficacy and supremacy of the U.S. Constitution. For, anything that negatively impacts the very structure of our Republic is immediately suspect.
The very thought that a U.S. President might dare to undercut the Bill of Rights compels one to consider whether the Executive Branch of this Government has been compromised and is working on behalf of forces both inside this Country and outside it that are actively, ruthlessly, and, heretofore, silently working for the dissolution of our Constitution and for the dismantling of our Nation State. If so, such forces must be doing so in preparation for this Country’s entry into a new international, globalist, socialist world order.
What the American people have learned from and continue to learn from Barack Obama’s “reign” should, hopefully, do much to forestall the coronation of Hillary Clinton.
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