Nothing Up My Sleeve
By Jack Kinsella
In fiction, when a president takes ‘executive action’ it generally indicates that what is about to happen is necessary, but illegal. Like in the old Mission Impossible TV series, where the mission is so ‘sensitive’ that if any of the agents are caught, the ‘Secretary will disavow your actions’.
It is great fun in fiction, and sometimes we like to think that somewhere in the bowels of government there actually is an Impossible Missions Force or some super-secret agent or agency that will enforce illegal, but necessary orders by the President without compromising the rule of law.
Indeed, we tend to fantasize that there is such a person as a Jack Bauer, but such fantasies always hinge on the assumption that the president who’s giving the orders is a man of unusually high morals that can be trusted to only take such ‘executive action’ for the good of the nation.
If that were not true, then such television fantasies as “Mission Impossible”, “I Spy” and “24” would have never gotten off the ground.
I think a lot of us were surprised to discover that there wasn’t such an agency somewhere that President Clinton couldn’t have tasked with quietly hunting down and killing Osama bin Laden and his lieutenants before September 11 made him an American curse.
Of course, the reason that an Impossible Missions Force doesn’t exist in real-life is because in real life, the president isn’t always a man of unusually high morals whose primary goal is to protect the nation. Sometimes, he is just a self-serving politician whose primary goal is his personal re-election and his secondary goal is to advance his party’s political interests.
The Founding Fathers were smarter than we are, recognizing that absolute power corrupts absolutely, and so they built in a system of checks and balances to protect the nation from executive overreach. It is for that reason that “executive action” involving a Jack Bauer or an IMF only exists in Hollywood fantasy.
Most Americans would be surprised to learn that the Founders went even further than that. Nowhere in the Constitution is the Executive Branch given the authority to issue “executive orders” which, in dictatorial countries are usually known as “Presidential decrees”.
The Power of the Executive is defined in Section 2, Article 1 of the Constitution and is limited to the following:
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
The Constitution denies him the right to make war, reserving that power to the Congress, but it does make him responsible for the conduct of the military during time of war, gives him the authority to seek the counsel of the rest of the Executive, and the limited power to grant reprieves and pardons.
His ability to appoint Cabinet officers is limited to nominating a candidate, which must then be confirmed by two thirds of the Senate. He has the power to enter the US into treaties, but only if ratified by two-thirds of the Senate.
The President is required to report the State of the Union to Congress once per year. He has the duty to make recommendations to Congress, but Congress is not obliged to act upon them. He can order Congress into session under extraordinary circumstances (the last time was President Truman in 1948).
The Constitution also makes it the duty of the President to “take care that the laws be faithfully executed”. This clause does not include an option whereby the Executive can choose to NOT execute laws that he doesn’t like, like the Defense of Marriage Act or existing immigration law.
Every federal officer, including federal law enforcement officers, swear the following oath of office:
“I (name), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
Refusing to enforce an existing law is an act of presidential dereliction of his Constitutional duty and a violation of his Constitutional oath. Ordering sworn law enforcement officers NOT to enforce the laws passed by Congress is an illegal order that demands that they violate their Constitutional oath of office.
It assumes that loyalty to the president and loyalty to the Constitution are one and the same.
“And for this cause God shall send them strong delusion, that they should believe a lie: That they all might be damned who believed not the truth, but had pleasure in unrighteousness.” (2 Thessalonians 2:11-12)
President Obama signed a total of twenty-three executive orders aimed at curtailing (or infringing on) the Second Amendment’s provision forbidding the government from infringing on the right to keep and bear arms.
Ironically, one of them requires complete federal background checks for all gun sales. The irony is found in that one of his first executive orders was the one that made checking his own background a federal crime.
The president said he was taking executive action to ‘circumvent’ Congressional opposition, which is precisely why the Constitution reserved legislative authority to the Congress — to prevent the Executive from ‘circumventing’ Congress.
That is a central PURPOSE for the existence of the Congress — to prevent the White House from passing legislation by decree. This isn’t to suggest that Obama is the first to use an Executive Order to violate the Constitution because the Congress wouldn’t. The illegal use of presidential executive orders goes back a long way.
When he issued Executive Order 9066, President Franklin D. Roosevelt delegated military authority to remove (by force) any or all people (used to target specifically Japanese Americans and German Americans) in a military zone.
The authority delegated to General John L. DeWitt subsequently paved the way for all Japanese-Americans on the West Coast to be sent to concentration camps for the duration of World War II.
The issue isn’t gun control. Think of a magician pulling a rabbit out of a hat…“nothing up my sleeve!” Gun control isn’t the rabbit. It’s the sleeve the magician wants you to focus on so you don’t see what he is really up to, in this case, the expansion of presidential power, in particular where it concerns the debt limit.
The debt limit? How did we get there from gun control?
“Where they won’t act, I will,” he said in October 2011 as part of a “We Can’t Wait” campaign he launched 10 months after Republicans took over the U.S. House of Representatives.
Since then, the president has turned to executive orders, policy directives, waivers, signing statements and other administrative steps to bypass Congress and act on contentious issues, including immigration, welfare, education reform and now gun violence.
Acting in response to the shooting rampage in Newtown, Connecticut, Obama announced 23 executive actions Wednesday designed to ensure guns don’t get into the wrong hands. He also called on Congress to ban the sale of assault rifles, limit the size of ammunition clips and require background checks for all gun sales.
“Increasingly, what we’re seeing is a lot of the policy-making apparatus of the federal government shifting to the executive branch,” said William Howell, a University of Chicago expert on presidential powers.
At the same time that Obama is bypassing the Congress to infringe on America’s Second Amendment Rights, he is refusing to negotiate with the GOP over their demand for spending cuts before they will agree to lift the federal spending limit.
Federal spending is limited by federal law. The Congress created the debt ceiling in the Second Liberty Bond Act of 1917. It allowed the Treasury Department to issue Liberty Bonds so the U.S. could enter World War I. It also gave Congress — and not the Executive — the ability to control government spending.
Obama increased the national debt by some four trillion, most of which was spent specifically in areas that would increase his voter base, in effect, using public money to buy public votes for his party. Obama wants that power taken away from the Congress and turned over to him.
If Obama can raise the debt ceiling at will, then he can buy votes and guarantee Democrat control of the country for as long as the Treasury can print money. Bread and circuses — that is what brought down the Roman Empire.
And that is what is really up Obama’s sleeve.
Originally Published: January 17, 2013.