[From article]
Understanding why pending executive action by President Obama on immigration, residency, and citizenship are objectionable, imprudent, and unconstitutional – and what can be done legally and politically about them, if he proceeds – requires a snapshot of history and law. Ten arguments stand between the president and such bold, unilateral actions.
First, executive directives of all kinds – and some have been creative – started with George Washington. They are theoretically justified by the indeterminate “executive powers” vested in each commander in chief by Article II of the U.S. Constitution. Their legal justification begins and ends there, and is necessarily nested in a larger constitutional text and intent, which has always favored avoiding unilateral executive actions unless absolutely necessary (as for national security). Thus, unless ceremonial or peripheral, the justification for directing agencies one way or another has been to clarify a law – never to create one.
[. . .]
Since the over-assertion of executive powers by Franklin D. Roosevelt (FDR), the U.S. Supreme Court and federal appellate courts have ruled unconstitutional any Executive Order (EO) that seeks to usurp or effectively legislate where Congress has spoken or reserves the right to speak.
Thus, for example, the U.S. Supreme Court overturned five of FDR’s EOs (6199, 6204, 6256, 6284 and 6855) for overreaching. Similarly, the Court threw out President Truman's EO 10340, in which he attempted to control the country’s steel mills to put down labor strife. The Court was clear: the EO sought to make law, not clarify it. Again, an appellate court confidently nixed President Clinton’s EO 12954, which sought to prevent federal contracting with those who hire strike breakers.
[. . .]
The first three arguments against the Obama EO are simple, and should be swiftly confronted in court if he issues broad executive action bestowing new rights on those otherwise not entitled to them under existing law or patently misinterpreting existing law to serve a political end, such as altering the process of citizenship. In sum, if he (one) obviously exceeds all formerly accepted constitutional authority, (two) seeks to legislate where the law is already clear or is clearly the province of Congress, or (three) intentionally disregards the law, the EO should be legally discarded, or viewed as “void ab initio” – that is, of no credibility or force.
[. . .]
We are a nation and people of laws, not of whimsy or capricious acts by self-adulating leaders, not subject to any dictator or the assumption of power by this or that president. These lines are well-drawn. The U.S. Supreme Court long ago made the point. We are not ruled by executive order, never have been, legally and prudentially cannot be, and should not now be. For any president to believe that he has the power to step upon all these legal and prudential considerations, because he has a pen and a phone, indifference to rule of law, or illusions of unilateral authority is simply misguided.
http://www.americanthinker.
November 17, 2014
Ten Arguments against Obama's Executive Action
By Robert Charles
No comments:
Post a Comment