Can a President Nullify Existing Law by Himself?

Dr. Harold Pease

Normally I do not write on talk show topics, wherein there exists extensive coverage (how be it little depth), I prefer introducing topics missed or under covered by the establishment news, but too few seem to care about the Constitutional fallout from the President’s most unconstitutional executive order/directive ever. Have we no Constitutionalists left in either party?

There is nothing more clear nor basic in the Constitution than the separation of federal power into three branches, one to legislate, yet another to execute that law, and a third to adjudicate possible violations, when contested, of that law—a division of power held “sacred” until the last few decades. The Constitution reads: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”(Article I, Sec. I).

The Executive Branch has no authority to make law—any law!!!! Executive Orders are constitutional only when they cite a single, recently passed law of Congress, where that law needs a statement of implementation by the executive branch. Presidential Directives, a type of Executive Order, differs only in defining how that law, passed by Congress, will be implemented. Neither type is to alter, or defy, law formerly passed by Congress.

For years some in Congress have been working on what is called the Dream Act that would extend amnesty and place illegal immigrants on a course toward full citizenship. Lacking popularity, twice it has failed to get the majority vote of both Houses of Congress required by the Constitution thus leaving existing immigration law unchanged; once, between 2008-2010, when the President’s party controlled everything except the Judicial branch. A president can only suggest a need for new law in his State of the Union Address, and either sign or veto a law passed by Congress, which then, if vetoed, must be overridden by a vote of 2/3rds of both houses to become law. That is it. This is the law of the land and the Constitutional procedure violated by President Barack Obama June 16, 2012, when, failing to get a favorable vote from Congress, openly defied Congress and the Constitution by ordering a like measure to that defeated, implemented anyway.

In a news conference he outlined the general parameters of his plan but specifics came from a six-page Memorandum from John Morton, Director of U.S. Immigration and Customs Enforcement (See FEA Number 306-112-0026), to enforcement personnel, which essentially advises ignoring existing immigration law. If left to stand this becomes existing law without the consent of the people through their representatives voiding the role of Congress. Ironically, if a Republican president did the same thing, the Democratic Party would make the same constitutional argument and rightfully demand immediate retraction of the President’s new law under threat of his impeachment.

This is the most open case of contempt for Congress and the Constitution and the President knew it. In March 28, 2011, he said, with respect to the idea of nullifying Congress on the deportation issue. “The notion that I can just suspend deportations just through executive order, that’s just not the case, because there are laws on the books that Congress has passed.”

So why would he now “flip-flop” and knowingly violate the Constitution? Obama sees an inept Congress that has not placed any restraint on his previous unconstitutional executive orders. He brilliantly also sees a way to “buy” the Hispanic vote. If the Republicans resist he has a powerful campaign issue.

His argument for the violation, “It is the right thing to do.” has nothing to do with the fact that he is usurping the powers given only to Congress, and in the most contemptuous way possible, and establishing a precedent for the continued nullification of Congress. Moreover, he is also in violation of his oath of office to “preserve, protect and defend the Constitution of the United States”(Article II, Sec. 1, Clause 8). His failure to do so is “a high crime,” an impeachable offense, which action should be introduced with bipartisan support with 100 signatures in the Senate and 435 in the House. This issue is that clear.

So why should Democrats be concerned and reign in their president? Because if they do not they, in effect, give permission to the next Republican president to defy Congress on something they had previously established as law, like national healthcare for instance, and by a simple Directive he too could not enforce that law. Democrats must see that their failure to insist on a retraction of the Directive forever weakens the sole power of Congress to make all law and places us on the road of government by decree or edict of one man. You must choose the Constitution over party. How does a president’s defiance of Congress differ from what a king or dictator does? It doesn’t. The Constitution is their to protect all parties and all citizens from arbitrary and caprices rule. Please let it work.

Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.

“I Lived Under Hitler and Stalin: They Promised Socialism … But Gave Us Tyranny”

By Dr. Harold Pease

I met R. Sellner Reese some five years ago and found her story one of the most interesting and unusual ever; she lived under two of the most murderous tyrannical governments ever: Adolph Hitler and Joseph Stalin. “I was born under Hitler, grew up under Stalin and worked under communist dictators Walter Ulbricht and Erich Honnecker in East Germany,” she told me. Few have more practical experience under socialism than she. She and her three children came to America in 1985 for political and religious freedom requesting political asylum. Her main message to us: “socialism never worked under these regimes and it will never work in America either.” She sees us falling into the same trap of repeated lies and promises that duped her German friends and neighbors.

“Hitler promised National Socialism but gave us tyranny instead,” she said. “Make the lie big, make it simple, keep saying it, and eventually they will believe it.” Some warned the people but the promises were so desirable and powerful. “My friend’s father told other people, that Hitler is a liar and will bring Germany down. One evening, two men came to his apartment and took him in for questioning before the police. Five days later, the wife received a letter that he has passed away with a heart problem. The family was told his grave is at the City Cemetery. The family was so afraid to ask questions, and nobody knew what the Gestapo had done. No paper concerning his death was ever found. I personally know so many people who have suffered in the Nazi time.”

A second Hitler promise: “Through clever and constant application of propaganda, people can be made to see paradise as hell, and also the other way around, to consider the most wretched sort of life as paradise.” The socialist promise that the government would take from the rich and give to the poor only made everyone poor and resulted in human suffering and death, and eventually war. “In my school class of 40 children, only 8 had a father after the war. Women had to take all the responsibility for family and their future.” So much for the socialist promises.

After the war the Soviets held the eastern part of Germany where she lived, (renamed East Germany) under socialism with Joseph Stalin. “We had to learn how wonderful the Red Army was and that socialism will take over the whole world to make all people free.” She remembered the fruitless promises of prosperity under Hitler. Socialism never delivered then or under Stalin. “We had little food and I never saw a banana, and chocolate was only a dream. We had to stand in long waiting lines for food. When I finally got to the counter, there might not be anything left. To buy a car, there was a 10-15 year waiting time. Of course, you must have cash!” Still, even midst all this poverty, the message went out, “SOCIALISM IS THE ONLY TRUTH ON THIS EARTH!” But the real truth was that the people could not choose their education or occupation. “The government had control over your personal life, our work, living place, childcare, school and the ‘STASI’ (Socialistic Secret Service) constantly watched us. If you resisted you ended up in prison and your children could be taken from you and adopted.”

A visit to Russia, the motherland of socialism, in 1982 revealed the failure of the promise of socialism there as well. “The citizens of Russia were so poor. Bad housing, not enough food and clothing.”

In 1985 Reese was finally able to leave socialist East Germany and come to the United States under political asylum. What she sees here in recent years is too similar to the socialist worlds from which she escaped, Reese says, and it frightens her that we are taking the same path of forced sharing the wealth and socialized medicine and so many other things, and she is forced to watch tyranny return one more time.

When she sees Congress having its own healthcare plan rather than taking the same one forced on the people visions of privileged healthcare for the socialist leaders in East Germany comes to mind. She experienced rationed healthcare when her mother, at 70, was declared too old for an operation and died two years later because resources would be better spent on the young but knew that such would not be denied a government official.

Reese warns, “What is happening in America right now is scary! I’d like to tell everybody, socialism will never work in America either.” Her loss of freedom in her former settings, she says, “didn’t happen overnight, but gradually, and it can happen in America!!”

Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.