A look at President Obama’s first term shows his repeated disregard for the Constitution that he has sworn to preserve, protect, and defend. Since taking office, Obama has betrayed contempt for our constitutional system of separation of powers. Our framers established three distinct branches of government so that each would serve as a check on the others, and so that none could trample on individual liberty. Obama has continually circumvented Congress’s constitutional role and he has denigrated the job of the judiciary. These repeated infractions seem to stem from a fundamental disregard for the rule of law and the text of the Constitution.
President Obama, like many leftist constitutional law professors, subscribes to the view that policy results are more important than law. When John Roberts was nominated to be Chief Justice of the United States, Obama was one of only 22 hard-left senators to vote against him, lecturing that, while Roberts might be a brilliant lawyer, “legal process alone will not lead you to a rule of decision.” Indeed, it rarely leads Obama to one. Again and again, he shirks his own duty to defend the Constitution, circumventing the separation of powers if he does not like the outcome that it requires.
For instance, our Constitution gives the Senate a key check on executive power by requiring the president to seek Senate approval to appoint senior officials. Article II provides that the president “shall nominate, and by and with the advice and consent of the Senate shall appoint … officers of the United States.”
The president may bypass the Senate under only one circumstance: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate.” This winter, the Senate did not go into recess and on January 3 conducted a pro forma session. But the next day, the president simply declared the Senate to be “in recess,” though it plainly was not. Then, he purported to appoint several officers, evading the Senate’s constitutional role. It was the first time in U.S. history that a president attempted to make recess appointments when the Senate — by its own lights — was not in recess. Obama flouted the plain language of the Constitution, pronouncing a naked assertion of power: “I refuse to take ‘no’ for an answer.” These appointments have been challenged in court, and it is likely that they will be declared unconstitutional.
Making illegal appointments is just one way Obama has undermined the separation of powers. He has also skirted his duty to fairly implement the laws. The Constitution grants Congress the authority to enact legislation but requires the president to “take care that the laws be faithfully executed.” Obama failed to do this when adherence to the law would not reach his desired result.
Take, for instance, Obama’s war in Libya. The War Powers Resolution requires the president to terminate the use of armed forces within 60 days after hostilities begin unless Congress authorizes military action. Like the Appointments Clause, the War Powers Resolution is a legislative check on executive power. But here too, Obama could not be bothered with any such restriction, evading it with the flimsiest of legalistic explanations.
Obama shunned the War Powers Resolution by claiming the United States was not engaged in “hostilities” in Libya. According to the president, “hostilities” ceased when we started fighting with remote warfare. But, of course, sending missiles in drones is just as “hostile” as firing with piloted fighter jets. Just as a convenient redefinition of “recess” served to obviate the Senate’s check on his appointments power, here a convenient redefinition of “hostilities” negated Congress’s check on his military power. Regardless of one’s views on the Libyan mission, distorting the plain language of an act of Congress undermines the rule of law and flouts the president’s constitutional duty to enforce acts of Congress.
In fact, Obama’s legal argument was so far-fetched that his own Department of Justice rejected it and urged him to comply with the law. But, taking a results-oriented approach, the president chose to ignore the advice and sidestep the statute.
Policy results seem to trump law when it comes to the role of the judicial branch as well. Obama has disparaged the judiciary’s constitutional function when the court has not rubber-stamped his agenda. During oral arguments on ObamaCare, many of the Justices asked pointed questions about the law’s constitutionality. Obama’s health-care law requires individuals to enter into economic transactions with other private entities, and several justices were clearly troubled by this unprecedented intrusion upon individual liberty. If the federal government has the power to force people to buy a product, then it could regulate “every human activity from cradle to grave,” according to the plaintiffs’ lawyer.
After oral argument (which one liberal commentator called a “train wreck” for the administration), Obama went on the offensive and preemptively chastised the court: “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” The next day, he backtracked after critics pointed out that judicial review has been part of our constitutional system of separation of powers for over 200 years.
When he is not denigrating the work of the judicial branch, Obama has found it convenient to sidestep the judiciary altogether. Last September, the administration targeted and killed U.S. citizen Anwar al-Alwaki in Yemen without any judicial review whatsoever. This violates the Fifth Amendment of the Constitution, which provides that “no person shall be deprived of life . . . without due process of law.”
Five months after al-Alwaki was killed, Attorney General Eric Holder asserted unchecked power to target and kill U.S. citizens. He claimed that judicial review was not needed because the executive branch had done its own internal evaluation. But due process is essentially a judicial check on executive power, which safeguards citizens’ life and liberty. As Alexander Hamilton explained, “the words ‘due process’ have a precise technical import, and are only applicable to the proceedings of courts of justice.”
Because the Constitution creates a unitary executive, vesting all executive power in a single person, it follows that an intra-executive check on executive power is no check at all. Indeed, recent reports have revealed just that; Obama makes the final targeting decision acting as judge, jury and executioner. The administration’s position undermines the judiciary’s constitutional function and turns the Due Process Clause into a dead letter, eliminating a core constitutional right. And Obama’s manipulation of “due process” – like his manipulation of “recess” and “hostilities” – undermines another fundamental check on executive power.
Again and again, President Obama bypasses the Constitution to enhance his own power, sidestep the other branches, and reach the outcome he wants. This should come as no surprise. Obama believes that the law should not always be dispositive, and that one’s “deepest values” and “core concerns” should carry the day.
But this outcome-based theory breeds lawlessness. A results-oriented approach is purely subjective; a good result to one person is usually a bad result to another. And putting one’s “deepest values” and “core concerns” above the law leads to the exploitation of power that our founders sought to prevent.
The notion that public servants – who take an oath to uphold the Constitution – may substitute their own judgment for the rule of law subverts the axiom that our country is “a nation of laws, not of men.” We have agreed to be governed by an objective body of law that our elected officials have a duty to evenhandedly uphold and apply. Our framers understood this concept, which is why they created a system where no person – including the president—is above the law.
If the President cherry picks which parts of the Constitution to obey and which to ignore, our Constitution becomes nothing more than a piece of paper. It is time to restore the rule of law and end the rule of Obama.
Stephanie Hessler
Stephanie Hessler is an adjunct fellow at the Manhattan Institute. She served as a constitutional lawyer for the Senate Judiciary Committee, where she advised on terrorist-detention policy.
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