NAPOLITANO: Executive order tyranny

Obama would govern by pen, phone and whim

Question of the Day

Should Congress make English the official language of the U.S.?

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Can the president legally bypass Congress and rule the government by decree?

The answer to the question above is no. You wouldn’t know that, though, by listening to President Obama. During the past three weeks, the president has made it clear how he plans to run the executive branch of the federal government in the next three years: with a pen and a phone.

In a menacing statement at a Cabinet meeting last month, as well as during his recent State of the Union address and in a pre-Super Bowl interview with my Fox News colleague, Bill O’Reilly, the president has referred to his pen and his phone as a way of suggesting that he will use his power to issue executive orders, promulgate regulations and use his influence with his appointees in the government’s administrative agencies to continue the march to fundamentally transform the relationship between the federal government and individuals to his egalitarian vision when he is unable to accomplish that with legislation from Congress.

He has carried out that threat already. In June 2012, facing a presidential election campaign that he feared he might lose and wishing to keep socially conservative Hispanics from voting for Mitt Romney, the president directed the Department of Health and Human Services — the same folks who failed miserably at rolling out Obamacare — to establish standards of behavior for millions of illegal immigrants, which, if followed to the government’s satisfaction, would get them off of government deportation lists.

To be sure, deportation can be ruinous, particularly to a family with children who were brought here as infants and have become fully Americanized. However, the conditions for deportation, and for avoiding deportation, can only be established by Congress, not by the president or his appointees.

When he lays down a list of conditions that permit persons in America to avoid complying with federal law, he is not enforcing the law — he is rewriting it. Only Congress can lawfully establish the circumstances under which those who are candidates for deportation may legally avoid it.

Also, when the president creates the conditions for avoiding compliance with federal law, he can hardly be said to be enforcing it. Yet enforcing federal law is the heart of the president’s job. The Framers were so concerned with the potential of presidents to decline to enforce laws with which they disagreed that they inserted the word “faithfully” in the presidential oath when describing his enforcement obligations, and then they inserted the oath itself into the Constitution.

The inescapable conclusion from this is that the Framers intended American presidents to enforce all of the laws that Congress has written, even those they dislike, even those they condemn, even those that may frustrate their friends, even those that may harm their political interests.

On the other hand, American presidents have some discretion when it comes to enforcing laws and may set priorities that are not inconsistent with the laws themselves. Mr. Obama, like all of his predecessors, has issued dozens of executive orders and signed off on thousands of regulations that have been lawful and helpful.

That’s because, as president, he is the chief executive officer of the executive branch of the federal government and is largely responsible for the professional behavior of the 3 million people who work under him as they follow his lead in enforcing federal law.

Thus, executive orders that complement, supplement and further the laws that Congress has enacted, orders that guide officials in the executive branch as to the president’s wishes, priorities and goals, and orders that clarify but do not contradict federal laws can actually be helpful — and such orders are invariably lawful and constitutional.

However, Mr. Obama seems to have had different kinds of orders in mind when he spoke of his pen and his phone — ones much more akin to the Department of Health and Human Services regulations on avoiding deportation — and he has made no effort to hide his intentions.

Two months ago, as the effective date of Obamacare was about to set in and after weeks of denying the obvious, the president acknowledged that the rollout of Obamacare was a disaster and that the cancellation of 6.2 million soon-to-be substandard health insurance policies was profoundly contrary to his assurances that that would never happen and was acutely harmful to those who lost their coverage.

To counter the effects of the rollout and the cancellations, the president told insurance companies to reinstate the substandard insurance policies for a year until the rollout could be corrected.

Thus, on his own, he attempted to change the effective date of the onset of Obamacare from Jan. 1, 2014, the date after which the substandard policies are unlawful, to Jan. 1, 2015, the date he now prefers.

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