Nov 22 2014

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Obama Crosses the Rubicon

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Uncharted Political Waters....

Uncharted Political Waters….

Every four years, the American people conduct the most consequential job interview on earth. While news coverage during the primaries and general election is dominated by complex issues on everything from tax credits to foreign policy, like any job interview, these topics serve as a national gateway to assess the underlying character and temperament of the candidate.

We may not state it consciously, but Americans of every political stripe have basic expectations for the person who will be president. Pundits call it the “regular guy” test – a person you would want to go have a beer with – someone that you can relate to, and who similarly can relate to your concerns and priorities, even if you disagree on how to resolve them.

If you dig a bit deeper, we can quantify those qualities.

At a minimum, final candidates for the presidency should possess courage, humility, wisdom, perspective, personal responsibility and above all, a deeply rooted respect for the American people and the traditions and history of the country they hope to lead. That, in turn, informs a secondary, but no less important quality – restraint.

Which brings us to President Obama.

Obama’s job interview was extraordinary in that it was one of the most superficial in modern American history. It was not a detailed review of his background, experience and values that drove Obama’s election, but rather events that were, paradoxically, well out of his control, but no less politically beneficial. A nation, already seething at President Bush over Iraq and other perceived calamities, was faced with an economic slowdown in an election year that was capped by the pandemonium from the collapse of financial markets six weeks before the general election.

Obama was new, young, charismatic and black. For a country frustrated with the political status quo and reeling from cascading economic armageddon, what better antidote than a change in course that made history at the same time; voting in different policies and appealing to our idealistic better angels.

In this respect, Obama’s election was not so much a job interview as it was a coronation, rich in trappings but pitifully short on substance.

Of course, we thought we knew him.

He appeared to embody merit and competence (his elite education and rapid political successes). He began his career as a grass-roots organizer (fairness and the little guy) and had been a professor of constitutional law (reverence for the Republic). Obama flattered America’s sense of self using his own rise on the national stage as a powerful metaphor for American exceptionalism. The future POTUS anchored himself tightly to the middle of American political thought with his rhetorical calls for bipartisanship and common sense solutions. Indeed, seeing Obama on stage with his wife and children, it was hard not to see a reflection of any regular, young family in America.

But after six years, and particularly after the President’s executive action on immigration this week, it is clear that none of this was true.

Too often during a term and a half in office, other qualities and characteristics have come to embody the president and his Administration; arrogance, contempt, impertinence, calculation, expediency and cynicism. The President has shown himself to be a politically brittle-skinned fabulist who has consistently refused to acknowledge, let alone accept, responsibility for his own words, actions and policies. Worse, these qualities play out against a backdrop where Obama’s conception of his own authority is at odds within customary, bipartisan interpretations of the federal government’s checks and balances.

This has resulted in a distorted projection of ideological incompetence, which does not recognize limits or boundaries. That projection creates convulsive echoes in our body politic that tear at the heart of our democracy, and which, once unleashed, cannot be easily rectified.

Consider the Obama record of suspect actions as summarized by Kimberly Strassel of the Wall Street Journal. “…altering the Obamacare statute; refusing to enforce federal drug laws; granting waivers for education reforms; using Justice Department lawsuits to impose new industry rules; drafting agency regulations [on labor, environmental or immigration issues] to go around Congress…” 

But even Strassel’s impressive litany is incomplete. It does not take into account POTUS’ unconstitutional use of his appointments authority (affirmed by SCOTUS) or his undeclared military action against Libya – where Obama worked to get UN approval, but not that of Congress. It misses calculated suppression of free speech perpetrated by the IRS, and the intimidation of a free press by the Justice Department.  And of course there are the Fourth Amendment violations of almost every American each day, courtesy of the NSA.

In this context, the immigration gambit that Obama has launched is only the latest – and the most egregious – use of Executive authority in what is an emerging “Obama Doctrine;” a theory   that if a law is unworkable or inadequately funded, and Congress won’t act to the president’s satisfaction, the president is justified in taking unilateral action.

What makes Obama’s executive action on immigration so pernicious is its combination of three hallmarks of Obama governance; legally unsupported executive action, justified through thoroughly contorted facts and in opposition to the priorities of the American people.

Unsupported Executive Action: without any apparent sense of irony, the President’s team released a legal opinion which states that POTUS’ authority to act is granted to him by Article II, Section 3 of the Constitution that states the president, “take care that the laws be faithfully executed.” With regard to the nation’s immigration laws, the legal opinion states that POTUS is simply exercising “prosecutorial discretion” – the power to prioritize activities within the scope of funding limitations.

But that is simply not the case.

The Department of Homeland Security (DHS) states that there are 11.3 million illegals in the US, and that the department has resources to deport about 400,000 per year, leaving about 11 million illegals in limbo.

With regard to prosecutorial discretion, any POTUS would be well within their authority to prioritize who, among the 400,000, would be targeted for deportation. Criminals and gang members over the children of illegals, brought to the US before the age of consent, for instance.

But it is a wholly different conception of law and executive prerogative to state that the inability to deport all illegals – and the absence of any new immigration law that might change the status of those illegals – provides the president with the authority to affirmatively change the status of millions of illegals by fiat.

The President is not simply stating that five million illegals won’t be deported. Based on DHS numbers and the absence of a new immigration law, we already know that, as do illegals who calculate the odds of a visit by INS. No, President Obama is unilaterally creating a new category of immigrant – call it, “state-sanctioned deportee” who will be granted, among other things, work permits.

But under existing federal immigration law, it is illegal for any employer to hire, recruit or refer for a fee any illegal immigrant to work in the United States. This includes hiring contractors who employ illegal immigrants. There are criminal and civil penalties associated with this conduct. That is why all new hires have to fill out an I-9 form – to prove their status.

So what trumps here?  Presidential action or the actual law?

Second, as a practical matter, the President cannot implement this Executive Order without funding. DHS will need to set up panels to process the illegals seeking protection, and there will have to be background clearances and IDs – a slew of bureaucratic work. But where would it come from? The Executive branch cannot make commitments of appropriated funds without the expressed permission of Congress. This is a foundational congressional power.  That power is detailed in the Anti-Deficiency Act, which prohibits federal employees from:

– making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law. 31 U.S.C. § 1341(a)(1)(A).

– involving the government in any obligation to pay money before funds have been appropriated for that purpose, unless otherwise allowed by law. 31 U.S.C. § 1341(a)(1)(B).

If President Obama uses funds appropriated to DHS by Congress for anything other than their intended purpose, specifically to implement his Executive Order, he will be in clear violation of federal law.

Contorted “Facts:”  In his speech to the nation, and in talking points and briefings by Democrats since, the Administration and its supporters repeatedly point to president’s Reagan and Bush (41) as previous Chief Executives that Obama is only emulating.


Reagan’s “amnesty” in 1986 was not unilateral executive action but a presidential signature on a law. Both Reagan and Bush did utilize “prosecutorial discretion,” but in both instances the action was limited to bringing federal actions in line with federal immigration laws, not the other way around as Obama is attempting.

Indeed, no president has ever created a new legal status for millions of people residing in the US through unilateral Executive action. Even the Emancipation Proclamation does not apply here, as it only impacted the states of the Confederacy that were in rebellion.  It did not apply to any state in the Union.

Opposition of the American People:it is hard to believe, sitting here in the aftermath of this latest Executive outrage, that only 18 days ago, the American people essentially threw the Democrats out of office across America. In January, with a new crop of elected officials sworn in, the nation will be more Republican at every level of government than at any time since 1928. President Obama joins Herbert Hoover in the annals of presidents whose political majority disappeared during their term.

That voter outrage on November 4th was directed at the President, who helpfully reminded the American people that his policies were on the ballot, even if his name was not. Voters took him at his word.

POTUS’ approval rating on Election Day  was 41 percent. 59 percent of voters had a negative opinion of the Administration. 65 percent believe the country is on the wrong track. 79 percent of voters don’t trust the federal government to do the right thing, a new record. 48 percent believe that the next generation of Americans will be worse off, also a record.

The most important issue for Americans? The economy with 49 percent.  79 percent of voters were worried about the economy and 70 percent rated the economy’s condition as poor, an overwhelming majority.

The second most important issue was health care at 24 percent.  As far as linkage to POTUS, Obamacare got a thumbs down with 49 percent believing the law went too far.

Immigration came in a distant third at 14 percent, one point ahead of foreign policy and the issues of ISIS, eroding global credibility and the threat of a new terrorist attack.

Interestingly, Pew did a study of Latino voter priorities in 2014 and found that Latino views were entirely consistent with the rest of the population, with the economy and health care dominating over immigration. Yet, after a stunning rebuke from the American people, the President has seen fit to elevate an issue of marginal, relative importance above others, and take action on his own.

Why now?

Senator Obama helped torpedo President Bush’s immigration bill in 2007 with “poison pill” amendments. During the 2008 campaign, candidate Obama promised the National Council on La Raza that he would pass a comprehensive immigration bill in his first year in office. From 2009-2010 with President Obama at the helm,  Democrats commanded 250 seats in the House and 60 seats in the Senate. Any immigration bill Democrats wanted could have passed, but no immigration plan was ever seriously considered.

Further, this matter of utmost urgency did not command an Executive Order before POTUS’ 2012 re-elect. And after months of threatening to act, Obama decided to wait until after the election to announce his plans.  While many see this as a failed plan to save Democratic Senate seats, postponing the announcement probably saved several vulnerable Democrats who would have had to take a position on the Obama’s actions.

It is hard not to conclude that the most cynical political motives are driving the President, paying off constituencies, baiting Republicans, and salvaging the Latino vote for the next Democratic nominee.

When he won the presidency in 2009, with a strong mandate of the American people, President Obama famously told Republicans that “elections have consequences.” But apparently this principle is conditional on Obama and Democrats doing the winning.

At his post-election news conference 17 days ago, President Obama tried to temper the harsh election verdict by paying homage to the 2/3rds of Americans who did not cast midterm ballots; all evidence to the contrary that this silent cohort was somehow completely in his corner.

In so doing, he was delegitimizing the actual results and the voters that delivered them for his own political ends.

Now, with this new Executive Order, the President again brushes aside the concerns of Americans regarding the economy and health care to pursue his own agenda and interests regardless of prevailing public opinion. Indeed, it is with genuine alarm that the President’s Executive Order is coupled with outright political extortion. If the GOP wants to negate Obama’s executive action, it need only pass an immigration bill acceptable to him.

No Republic can long survive with a governing paradigm where the Executive justifies action by legislative inaction. Indeed it requires a complete reinterpretation of executive authority, not contemplated in the Constitution, to accommodate Obama’s expansive ambitions. It is a deeply unsettling pattern of behavior that points to a basic contempt for the American voter and the American political system.

In 2008, in the midst of crisis and with the best of intentions, America bought into a false narrative. Obama the president scarcely resembles Obama the candidate, though they are notionally the same man. Only with election, and to our collective regret, have we found out which is real and which is not.

As the GOP scrambles to assemble a response to this latest, unnecessary constitutional provocation, there is the longer view and important lesson.

The nation must cope with a unique uncertainty now, with a president who is no longer accountable to the people at the ballot box, and as a result does not feel particularly constrained by legislative power or public opinion. That will generate its own series of crises and brinksmanship in the months ahead. But in the next two years, we will also be selecting Obama’s successor. Let this presidency serve as a warning to all of us that we never again elect such an unqualified person to our highest office.





















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