Wednesday, May 29, 2013

The End of Executive Order Government

Over the past several years, it’s been fashionable to claim that Obama would run the government as a dictator and would simply do whatever he wanted by Executive Order. This has typically been promoted by the self-described “constitutionalists” in our midsts. Naturally, no such thing is possible under our Constitution, as the last few weeks have proven once again.

Appointment Time: As far as I can tell, the only constituency Obama cares about at all is labor unions, and labor unions care about the National Labor Relations Board (NLRB). The NLRB is a five member board that hears claims of unfair labor practices. Labor hopes to use the NLRB’s rulings to forcibly unionize companies like Boeing, who have relocated to right to work states where labor unions are all but extinct.

The problem for labor has been that the NLRB hasn’t had enough members to issue decisions. Between January 1, 2008 and continuing through March 27, 2010, the board only had two members. That’s not enough to issue decisions legally, but they did it anyway. Those two members issued nearly 600 decisions. Sadly for them, in June of 2010, the Supreme Court came along and wiped out all of those decisions in New Process Steel v. NLRB, which held that the Board must have at least three members to issue valid decisions.


Since the Republicans weren’t willing to allow Obama to appoint anyone new to the NLRB, Obama took matters into his own hands and appointed three new members in January 2012, claiming they were “recess appointments.” So the Dictator got away with it, right?

Well, no. In January of this year, the DC Court of Appeals ruled that Obama could not do that. They ruled that recess appointments could only be made when a genuine recess happened, not just when Congress took a quick break. Basically, they defined “recess” as the end of the Congressional term. That’s undone everything Obama tried.


I Declare Thee Legal: When the immigration debate first drifted into freak-out mode, our “constitutionalist” friends screamed that “Obama’s going to make them all legal with an Executive Order!!” Said Glenn Beck, “The Fedrechauns are here for me gold!!” Oops, sorry, wrong quote. Anyway, once again, reality has caught up. See, Obama has no power to change immigration LAW in the Unidos Estados... the President has no power to change any LAW. In fact, that’s a good word for scholars like Mark Levin to learn: LAW.

LAW = Congress, not President.

To put it simply, a president may not make laws or decide how to spend money. The president has only the power to spend what Congress tells him and to issue regulations in accordance with the laws Congress passes. But those regulations (1) must be consistent with the law, and (2) may not exceed the authority granted to the president under the law. Basically, a President can only do what Congress tells him to do. Simple enough.

So what happened vis-à-vis the immigration issue? Obama tried to force the states to give illegal aliens drivers licenses by issuing an Executive Order. Arizona Gov. Jan Brewer immediately issued her own executive order refusing to follow Obama’s order. She got sued on the basis that her order conflicted with “federal law.” This month, a Federal District Court agreed with Brewer because the court noted that Obama can’t create immigration law. Thus, he cannot impose such a requirement on Arizona.

(As an aside, Brewer may eventually lose this case on other grounds because Arizona already allows some illegal aliens to get licenses, but that’s a different issue.)

So what is the point? Well, this. Don’t believe all the loony theories about what secret things Obama is planning to do... they can’t be done. Our system works just like they told you it does in civics class when you were a kid. Obama cannot run the government by executive fiat. He may issue such orders from time to time, but they will be struck down by the courts and his efforts undone. He can’t create a private army. He can’t ban ammunition or guns. He can’t declare gay marriage the law. He can’t legalize all the illegals. He can’t spend money in any way Congress doesn’t allow. He can’t just appoint whomever he wants either. He needs to follow the same rules every other President has followed... whether he or Alex Jones like it or not.


Tennessee Jed said...

funny thing how the law gets in his way. Nice post, Andrew

AndrewPrice said...

Thanks Jed! It is. There's no doubt Obama wants to overreach, but his efforts have blown up on him.

At the same time, it exposes that all the talk about Obama doing secret things and massive power grabs are just fantasy.

The reality is that our government works (or doesn't work) as it always has.

K said...

Speaking of other Presidents: Andrew Jackson ignored the SCOTUS and got away with it, Lincoln and FDR ignored the SCOTUS in wartime and FDR came close to simply appointing a bunch of new justices thereto. So if the Senate goes back to a 60 Dem majority ...


I personally don't believe the Republicans would risk impeaching a black union backed President for ignoring the courts and enforcing an illegal NLRB ruling - say by having the Defense department stop payments to Boeing for other contracts.

Anthony said...


So you're telling me that the only things I have to fear are the UN's blue bereted Ninja army, the aliens that have sought to dominate our planet since Roswell, and of course North Korea, the only country in the modern world with the military power to threaten us (unless Hollywood has lied to me).

Patriot said...

Andrew.....I don't believe I've seen you comment on the ongoing scandals de jour (IRS, Benghazi, DOJ, etc.) and how this admin has abused the power you so rightly state is vested in the executive. While he may not "legally" do any of the things you mention above, let's use the Fox reporter case in point. Holder (Obama) went through two judges before he found one willing to skirt existing law in order to provide the admin the power they were seeking.

But...they had to follow the law! What they did wasn't illegal! When we base our actions on if they are "legal" or not, rather than are they morally, ethically and just, then sure, Obama is limited by the "law." Doesn't mean he can't abuse that law, skirt tradition and comity (judges going along with them) and otherwise run roughshod over existing law.

I think what we have in this admin and its minions, are intelligent people, well read, yet very focused in their actions. They know what to say to stay within the to obfuscate in order to throw people off, and generally convince people of the righteousness of their actions in order to achieve their aims...(always thinking long-term).

While they will get caught here and then, their overall approach to governing is tyrannical. If you don't agree with us, we will do everything within the law (and many times outside the law if need be) in order to silence you and your dissent.

That is what I find the most disturbing about these ass clowns. Sure, what they are doing might be legally within the law, but they stretch the law at every opportunity it seems, in order to push their agenda.

Look at ObamaCare. How it was passed. Within the law? Sure. Sold as one thing and legislated as another? Yep (SCOTUS ruling that it is a "tax" and can be legally upheld).

So while I agree with your article, I don't think these guys will ever give up, and who knows how many other "extra-legal" things are happening right now.

Can a government be tyrannical and still be within the law?

tryanmax said...

Can a government be tyrannical and still be within the law?

By strict definition, no.

tryanmax said...

Andrew, the conspiracy-talkers do a great disservice by speaking of Obama as a power-grabbing dictator. Isn't it bad enough that he ties up the courts with his riverdance on the Constitution? By claiming that he is seizing power, the talkers only discredit themselves when he eventually gets slapped down. All presidents test their boundaries--it's part of the leadership trait--but there's a strong case that Obama doesn't appear to even know where those boundaries are. That's what the talkers should be on about.

AndrewPrice said...

K, Different world. At those points, the courts were a nearly powerless appendage of the government. Also, FDR was ultimately reined in by the supreme court.

As for impeachment, why do they need impeachment when he can be stopped by simple court order?

AndrewPrice said...

BTW, K, Notice that the 2008-2010 period when Obama couldn't get anyone appointed to the NLRB was a period where the Democrats held a supermajority in the Senate.

AndrewPrice said...

Anthony, Yep. Those are the only things to worry about. Although, the UN ninja force are also brutally incompetent... unless that's just pretend. The aliens are real though, and North Korea could be on our doorstep any day now if only people would tell the truth! :P

By and large, the world is what it seems.

T-Rav said...

Point of order: The constituency Obama cares about isn't labor unions per se, it's the labor unions rich and powerful enough to give him lots of money and professionally agitate on his behalf. The rest can go screw themselves.

AndrewPrice said...

Patriot, I concur. What I'm trying to point out is that Obama is bad enough without turning him into a fantasy boogeyman as so many people seem intent on doing. He is abusive. He absolutely does things that should be attacked and, if necessary, the power to do them again taken away. He has also done things which are illegal, BUT in those instances, the courts have knocked him back.

Since 2008, a lot of people have built up this doomsday image of Obama as an all-powerful wizard doing whatever he wants and getting away with it all. They take issue after issue and they quickly spin it into "he's just going to do it and no one can stop him!!" And when questioned on how he's supposed to do this, they either say "He'll just do it" or "by Executive Order."

Well, that completely misunderstands how the government works. The government can't just do things, it needs orders. And those orders need authority or they get struck down by courts and they need money or government employees can't do them.

The people screaming these theories don't seem to get that. They think Obama is head of a corporation who can simply do what he wants and tap the treasury as needed unless the Board stops him. That's not at all accurate.

What sparked this is the number of times I see people make these claims: "he's just going to do it!" And these people often claim to have some greater understanding of the constitution than the rest of us, even though they are completely wrong. They also ignore things like the above which don't fit their paranoid fantasies.

Remember, credibility matters and it doesn't help our side if we let these people lead the debate. The moment people hear crazy theories being advanced, they tune out and they don't come back.

In terms of the scandals, I have spoken about the scandals, just not obsessively because there isn't much to say at this point. They are following the same trajectory of all the strongest scandals I've seen. And I'm sure there will be more to say as we go forward.

Lastly, as an aside, the government does not run on morality or tradition. It runs on law. That is the only thing that matters to the government and that is the only thing that SHOULD matter to the government. A government needs clear rules and it must follow those. Morality and tradition are nebulous and in the eye of the beholder. Law is clear.

AndrewPrice said...

tryanmax, True. By strict definition no. But you're getting into a question of how different people define tyrannical. Some people simply think that the power already allowed the government is tyrannical and they just don't make the distinction. I can't say they are wrong. Our government has far too much power in too many areas and a propensity to abuse it.

AndrewPrice said...

tryanmax, I think the conspiracy-talkers do a lot of harm. They freak people out over things that can't happen and they effectively send those people into an irrational mode, which makes them useless to our side.

Think of it this way. Imagine liberalism as an invading army, circa. the Middle Ages. We need to come up with an effective battle strategy. That means figuring out their strengths, their weakness, and their plans and coming up with an effective counter.


See the problem? These people are freaking people out, getting them irrational, getting them to focus on things that are completely meaningless, and basically destroying the cohesion of our side. They are demanding that our leaders pursue "dragon protection plans" and they savage the people who try to focus on genuine strategy.

That's why these guys cause us problems.

AndrewPrice said...

T-Rav, LOL! Excellent, excellent point!

El Gordo said...

Andrew, it is also important to always capitalize TRUTH. It´s makes everything you write twice as TRUE.

AndrewPrice said...

El Gordo, LOL! I've noticed that. They do always use all caps for TRUTH. I guess that helps?

T-Rav said...

It's a well-known fact that if you put it in all caps, italicize it, or do something else that denotes emphasis, that makes it true. Also, if you can slip in a "Haters," sometimes with one or more letters replaced by an 8, when referring to your opponents, that makes it super-true.

AndrewPrice said...

True! And if you use the 8, it keeps "THEM" from being able to track you... you know who THEY are. THEY want to SILENCE me because I dare to speak the TRUTH when NO ONE else will!

AndrewPrice said...

FYI, I just saw that Michelle Bachmann is quitting. It looks like she was going to lose, so I'm not surprised.

Patriot said...

Andrew.....Regarding your article and my comments least Obama does not wear the military uniform around like Castro, Mussolini, Qaddafi, Hussein, etc...

So instead of a jackboot stomping on our necks, we will have Bruno Magli loafers tap dancing on our faces.

To quote Montesquieu:
There is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice.

AndrewPrice said...

Patriot, I doubt Obama would have lasted in the military. He hasn't exactly shown any ability to be a team player.

In terms of Obama and tyranny, Obama's tyranny is petty. He's a kleptocrat. He must be a true disappointment to all the leftists who thought he would impose their will on the rest of us.

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