The thinking of a Pulitzer Prize winning journalist (George Will) combined with a grass-roots understanding of the journalist's solution to the current Constitutional crisis that is the Obama presidency.

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From the Washington Post, here,  we have the insightful opinion of George Will. In the name of educational clarity,  this blog's editor has decided to include an excerpted  text of Will's article accompanied with an interlinear explanation.  It is hoped that those reading will not assume that arrogance is my motivation.  I understand that this effort is somewhat similar to a music novice critiquing Mozart. Fair warning.  My comments are parenthetical and in italics;  the excerpted text belongs to George Will,  and is unedited as presented.  The interlinear is of my doing and understanding as I read Will in this article.  I am not sitting here,  with a dictionary in hand.  You will want to click on the link,  above,  to read the full article in the Washington Post     ~  J Smithson.




Now,  George Will:  

" . . . . . . . . . .    making executive power compatible with democracy’s abhorrence of arbitrary power — has been a perennial problem of modern politics. It is now more urgent in the United States than at any time since the Founders  . . . . . . . .    that presidents “shall take care that the laws be faithfully executed.”

[with his first words,  Will takes us from the Founders and their intentions, directly to the current president and his abuse of the marginal but necessary liberties given to any sitting president.  The "perennial (perennial = long standing" or "on going") problem," as Will states the case,  is the balance between "executive power" (as defined by the Constitution) and the horror (Will's "abhorrence") of arbitrary power.  Implicit, here,  is Will's thinking that "executive power" is a defined concept,  while "arbitrary power" is a personal passion that is unique to the particular individual,  in this case,  H Obama.  Understand that "arbitrary,"  always includes the notion of  "unpredictability."    Clearly,  none of us know what is the next "shoe to fall" in this world being recreated by H Obama].  

. . . . . . . . . .    Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been  egregious in quantity and qualitatively different.

[Will believes that Obama has taken the generational disagreement over the balance of (executive v congressional) powers (Will's word:  "equilibrium") ,  and magnified that problematic issue.  More than that,  Obama has abused the resulting  confusion as his personal policies threaten the balance  that should exist between a presidential lust for power,  and what is prescribed in the Constitution.  Obama has taken advantage of this centuries old debate, to the point that Will describes this revolutionary effort as a "derangement" not seen at any time in the past]

Regarding immigration, health care, welfare, education, drug policy and more, Obama has suspended, waived and rewritten laws, including the Affordable Care Act. It required the employer mandate to begin this year. But Obama wrote a new law, giving to companies of a certain size a delay until 2016 and stipulating that other employers must certify they will not drop employees to avoid the mandate. Doing so would trigger criminal perjury charges; so he created a new crime, that of adopting a business practice he opposes.

[No comment needed, here.  Will states the obvious in straight forward terms]. 

Presidents must exercise some discretion in interpreting laws   . . . . .    Obama, however, has perpetrated more than 40 suspensions of laws. Were presidents the sole judges of the limits of their latitude, they would effectively have plenary power to vitiate the separation of powers, the Founders’ bulwark against despotism.

[Re: "Were presidents the sole judges of the limits of their latitude, they would effectively have plenary power to vitiate the separation of powers, the Founders’ bulwark against despotism."  G. Will acknowledges a certain implied degree of discretion or "latitude" for a sitting president.  The danger in this,  as Will sees it,  is this: if a sitting president is the only judge as to the extent of his presidential powers,  he - as a sitting president - has the power to vitiate (vitiate = to destroy or impair the legal authority of ) the separation of powers.  Our only defense against "despotism" is this "separation of powers." ]

Congress cannot reverse egregious executive aggressions such as Obama’s without robust judicial assistance. It is, however, difficult to satisfy the criteria that the Constitution and case law require for Congress to establish “standing” to seek judicial redress for executive usurpations injurious to the legislative institution . . . . . . . .  However, David Rivkin, a Washington lawyer, and Elizabeth Price Foley of Florida International University have studied the case law and believe that standing can be obtained conditional on four things:

[Know that a lawsuit cannot go forward without "standing."  In other words,  if you are not personally harmed or affected,  you cannot bring suit against another.  Typically,  a legislature has no standing in the face of a rogue administrator if that administrator is grant powers to apply or enforce the law.  And,  because he is the administrator of our laws,  a president must be allowed interpretive discretion,  free of the legal burden of having to defend his actions at every turn.  Obama has taken this freedom,  turned it on its head,  and threatens to function as if a dictator.  Will's word for dictator,  in this case,  would be "despot."  What follows,  immediately,  is an effort on the part of George Will,  to establish "standing" as he hopes for a legal challenge to the despotism of H Obama. Four things are needed to establish "standing," as Will sees,  and proceed with a legal challenge to Obama's personal and in-your-face,  agenda.]  

(1) That a majority of one congressional chamber explicitly authorizes a lawsuit. (2)That the lawsuit concern the president’s “benevolent” suspension of an unambiguous provision of law that, by pleasing a private faction, precludes the appearance of a private plaintiff.   (3) That Congress cannot administer political self-help by remedying the presidential action by simply repealing the law. And (4) that the injury amounts to nullification of Congress’s power.

[The parenthetical numbering is mine.]  

. . . . . . . . .     The House would bring a civil suit seeking a judicial declaration that Obama has violated the separation of powers by effectively nullifying a specific provision of a law, thereby diminishing Congress’s power. Authorization of this lawsuit by the House would give Congress “standing” to sue.

[Whether this is specific to Will's point or not,  I believe that Obama has essentially nullified Congress.  And,  because there is confusion as to what he can actually do apart from congressional approval, with his pen and phone,   the nation has come to an impasse, with nowhere to go except to move to elective,  one party rule,  precisely what our Founders did not want to happen.]

Congress’s authorization, which would affirm an institutional injury rather than some legislators’ personal grievances, satisfies the first criterion. Obama’s actions have fulfilled the rest by nullifying laws and thereby rendering the Constitution’s enumeration of Congress’s power meaningless.

[Understand that "personal injury" is not grounds for a lawsuit challenging presidential action.  Will hopes that "institutional injury"  (the nullification of congress and the amendment of the "separation of powers" by a single administrator) affords the opportunity for consideration in a federal court of law. ]  

The House has passed a bill sponsored by Rep. Trey Gowdy (R-S.C.) that would guarantee expedited consideration by federal courts of House resolutions initiating lawsuits to force presidents to “faithfully execute” laws. But as a bill, it is impotent unless and until Republicans control the Senate and a Republican holds the president’s signing pen.

[What Will hopes to accomplish cannot happen apart from the control of both houses of congress and the signature of a sitting president.  In other words,  Obama gets to expand his destructive use of anarchy (anarchy = to function with no regard for established law or order),  throughout the remainder of his term as "president."  The extreme use of power is not "abuse of power" until and unless,  a court of law passes judgment.  Until now,  presidents have been trusted to remain within certain boundaries.  Obviously,  that is no longer the case.  You have heard it said,  that Obama is our first "post modern" president (?).  You should know that central to "post modernism,"  is the rejection of current traditions and order.  Obama is post modern in this regard,  to a fault,  and extremely dangerous to our republic,  for the same reason. ]  
. . . . . . . . . . .   

[In his WaPost article,  Will finds it incredible to the point of being perverted,  that a court would find itself so mired in the legalese of the separation of powers,  that it could not,  in the end,  give itself the jurisdiction to end the abuses fostered by the Obama Administration.  In short,  does the Constitution give us the unavoidable power to destroy ourselves.  That must never be the conclusion.  It is,  however,  the belief of H Obama.  ]  
. . . . . . . . . . . . . .

[The only recourse, according to Will,  as he concludes his article,  is impeachment.  Will makes the point that even if impeachment was a successful conclusion to this presidency  (Biden would be our president for a time . . .   you all know this,  correct?),  the legal potential for presidential despotism remains.  The problem is not solved,  and awaits the next advocate for a Marxist type alternative.]  

Updated for this conclusion:  In the end,  we need to admit to the fact that Obama's "transgressions"  are more the result of the abuse of power,  than any outright claim,  on our part, as to illegal activity.  Curiously,  he is "legal" in the abuse of given powers,  while being lawless as an Administrator.  As a community organizer who has spent all of his adult fighting "the man,"  his sense of profundity is found in the novelty of his methodology,  his very unique ability to use accepted law and order to escape containment as his self-serving practice of anarchy transforms this country into the developing mess we are witnessing.  Anarchy or randomness,  at any level,  cannot produce order.  Rather,  randomness has as its only heir,   a failed pretense,  if anything tangible at all  -  emphasis on "failed."  

A perfect example , in the here and now,  is Obama's immigration policy.  Over the years,  our legislators have given the presidency the prerogative to obey or disobey law, as incredible as that might sound.  Obama can say,  "I am not going to enforce border security.  If they don't like it, tell someone to arrest me."  And in that statement,  he would be absolutely correct.  Our president is above the law,  if we do not move to impeach him.  That would be the solution,  of course,  if Joe Biden was not waiting in the wings,  to take over the throne.  As to immigration,  the utter chaos he has created in his refusal to commit to his duty as a president, puts this country in danger and has [perhaps] caused serious damage to his own political party.  

George Will details a process that would give a legal solution to this sort of thing,  but even he admits that there is no solution if the opposition  (that would be "us") cannot win critical elections.  And,  of course,  therein is the most immediate solution  . . . .  winning elections.  If we win the next two election cycles,  a patriotic America can put this nation back on course and reverse the tragic misuse of power that is the Obama version of Progressive Politics.  

Finally,  I must tell you this, and it is some good news.  Barack Hussein Obama is unique,  even within his Democrat Party.  While Elizabeth Warren is as much an anarchist as Obama,  Hillary Clinton is not.  Indeed,  Hillary is a big government type and fairly radical in that persuasion,  but she does not appear to be one who would circumvent congress,  act wholly on her own,  especially if she were to be elected into a divided government setting.    There is nothing permanent,  about unpopular actions taken that are grounded in executive order or agency regulations.  All "established policies" coming from the abusive use "executive order" and "agency regulations"   can be reversed by the next president,  without congressional review  . . . .  and they can be reversed anytime in the future.  His "global warming policies,"  as an example,   if not borne of legislation,  are never permanent by any legislative measure.   In fact,  in most cases,  a public outcry that demands such reversals,  is more important to putting us back on the right track,  than any other consideration.  

Obama does not know how to govern in a divided congressional setting.  I doubt Warren has this ability,  as well.  I do believe that Hillary, however,  would work within the system,  as did her husband.  Of course,  if she were to win the presidency,  most of the Obama agenda would remain in some form ,  added reason for working against her candidacy,  should be the Democrat nominee.  But the days of anarchy,  may be over. 

Until then (the next presidential election),  no legislation of import,  should be passed into law.  If the Chief Administrator cannot be trusted to apply that law,  he should not be given new  opportunity to practice his brand of anarchy . . . . . . . . .  period.     

2 comments:

Anonymous said...

Seems to me that Will is playing the long ball, in working for a court ordained solution. He admits that we have to win both houses and the presidency before his idea can move forward. Seems to me, if we win both houses and the presidency, problem solved.

John Smithson said...

Of course, Will is concerned with a permanent solution, one that would require the Leftist Anarchy to actually obey the law. Understand that George Bush, a genuine fellow, allowed for "sanctuary cities." There are close to 100 of these places, every single one in stark violation of federal law and they were not the idea of the Feckless Obama. But what an administrator allows and what he does, are two different things. Give Obama a law to work with, and he regards it only as a legal suggestions giving him the right to reconstruct that law to his own purposes. This is why he cannot be trusted with another major piece of legislation. He is not to be trusted to practice the laws that have been or will be written.

Will's suggestion does not work without or before elections are won. My problem with what George Will proposes is this: there really is no way to bind a lawless minded person of authority, to a faithful course of conduct. Unless and until we criminalize such behavior, we have no recourse. Of course, and on second thought, Will's proposal would give Congress a legal and enforceable venue for criminal pursuit of a lawless president. Guess we need both - to win elections and establish legal precedent form criminal charges against a sitting Top Executive or community organizer, depending on which party wins the election.