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President Obama, who used executive orders during his first term for pay changes, setting up a variety of councils, creating immunity for Bosnia, ensuring abortions through Obamacare, promoting “diversity” and dozens of other things, is explaining that he’ll be expanding that activity during his second.
In fact, he’s setting a course to do what he wants with or without action from Congress, unleashing the full power of his White House bully pulpit to make America over.
“We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen, and I’ve got a phone,” Obama said, according to a report by CBS.
“And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward in helping to make sure our kids are getting the best education possible, making sure that our businesses are getting the kind of support and help they need to grow and advance, to make sure that people are getting the skills that they need to get those jobs that our businesses are creating.”
He continued, “One of the things that I’m going to be talking to my Cabinet about is how do we use all the tools available to us, not just legislation, or order to advance a mission that I think unifies all Americans.”
A top legal expert, Judge Andrew Napolitano, says there are few limits on what Obama could include in his orders, and fighting back is a long and hard course.
“There really is no line,” the judge told WND in an interview Wednesday. “We have the welfare state, the warfare state, we also have the administrative state.”
That, he said, allows a president through his appointees to issues rules and regulations, impose requirements and change America.
Only when a federal agency “abuses its discretion,” as determined by the courts, are the reins drawn, he explained.
Obama’s frequent use of executive orders date back to his first inauguration, when he immediately ordered presidential records sealed in a move that to this day remains largely unexplained.
He’s followed with a long list, including a recent order “preparing the United States” for the “impacts” of one of his favorite causes, “climate change.”
He also used the power of his pen during his first term to change national practice – some say he changed the law – regarding illegal aliens. One of the biggest points his critics make is that he has arbitrarily, without action from Congress, repeatedly changed the federal Obamacare law to make provisions for certain groups of constituents.
During Obama’s first term, Richard Thompson, chief of the Thomas More Law Center. which is fighting the Obama administration on a number of the subjects that also have been raised in executive orders, said, “It is very disconcerting.”
At that time, even the the far left-leaning FactCheck wrote, “It’s true that President Obama is increasingly using his executive powers in the face of staunch Republican opposition in Congress. He’s changed federal policies on immigration and welfare and appointed officials without congressional approval.”
The explanation continued, “Obama is employing his executive powers now more than ever before during his presidency. Obama has been sidestepping Congress through his ‘We Can’t Wait’ initiative, a series of executive actions that he claims benefit the middle class through infrastructure projects and economic policy changes. He also skirted Senate approval in January when he appointed nominees to the National Labor Relations Board and to the Consumer Financial Protection Bureau. The appointments were unprecedented because he made them when the Senate was technically not in recess, prompting legal challenges from conservative groups.”
And the explanation said, “In June, the president halted deportations of illegal immigrants who entered the United States when they were children and met certain requirements, such as the lack of a criminal record. The change mirrored provisions of the DREAM Act — failed legislation that Obama supported and Senate Republicans blocked in 2010. And in July, Obama changed welfare policy to allow states to modify work requirements if they test new approaches to increasing employment. Obama did not submit the policy change to Congress for review, which the nonpartisan Government Accountability Office concluded he should have done.”
‘Stroke of the pen’
It was a presidential aide to Bill Clinton, Paul Begala, who put the controversy into perspective, back in July 1998.
“Stroke of the pen. Law of the land. Kinda cool,” he said, on how the Clinton machine was able to simply dictate what it wanted to have happen.
Judge Napolitano, the senior judicial analyst for Fox News, is the youngest life-tenured Superior Court judge in the history of the state of New Jersey. On the bench from 1987 to 1995, he tried more than 150 jury trials. He’s handled thousands of sentencings, motions and hearings. For 11 years, he was an adjunct professor of constitutional law at Seton Hall Law School, and he’s written a long list of books, including “Constitutional Chaos: What Happens When the Government Breaks Its Own Laws” and “The Constitution in Exile: How the Federal Government Has Seized Power by Rewriting the Supreme Law of the Land.”
He told WND under the “administrative state,” the Administrative Procedures Act allows presidents to make appoints to agencies, who then make determinations about what happens in America, what is allowed, what is not, what is required, or not.
This “body of permanent bureaucrats unanswerable to the public” also generally survives from administration to administration, he said.
Two recent battles that have focused on this power base have been the FCC’s net neutrality rules, and Obama’s decision to make “recess appointments” even though the Senate was in session when he made those appointments.
In a rare loss for the Washington power structure, a U.S. appeals court this week rejected federal rules requiring Internet providers to “treat all web traffic equally.”
The result is that mobile carriers and other broadband providers may be able to charge content providers for faster access to websites and services.
The so-called “net neutrality” rules adopted by the Federal Communications Commission had required providers to give consumers equal access to lawful content without restrictions or tiered charges. But the U.S. Court of Appeals for the District of Columbia Circuit struck them, deciding that the agency failed to document a mandate to impose such “anti-discrimination” rules.
The other recent dispute remains undecided. It is over Obama’s decision to make “recess appointments” of three members to the National Labor Relations Board so he could pursue his agenda, even though the Senate technically remained in session.
The Supreme Court heard arguments this week on the fight, after Obama’s critics won at the U.S. Court of Appeals for the District of Columbia.
Bar set high
Miguel Estrada, an attorney representing 44 GOP senators, whose own appointment to an appeals court ironically died under George W. Bush because of Democrat “intransigence,” argued that the issue is whether the president can decide when the Senate is in session, or will the Senate.
Napolitano told WND the bar set for the invalidation of executive orders – essentially that the decision abuses an agency’s discretion – is very high.
He said the fights can be so long and daunting that many times objections are not raised.
“Often the harm [is] endemic to the community before the court can even reverse the decision,” he said.
He said the concept dates back to President Woodrow Wilson, who believed that experts, not just elected representatives, should rule the American people.
He pointed out it’s not a party-line fight, that “every president has used the pen to affect the lives of individuals vis-à-vis the federal government in ways Congress declined to do so.”
On Obama’s agenda, he said, “Certainly the president is reaching as far as he constitutionally can … to change the relationship of the federal government to individuals.”
Napolitano predicted, too, that it will continue, unless Sen. Rand Paul, R-Ky., who repeatedly has taken firm stands on the original Constitution and its intent, is elected the next president.
Napolitano said he lectures regularly on the Constitution, and every time when he prepares to talk about the issue of the expanding power of the executive branch, “there’s more and more grist for my mills.”
“All in the direction of the government,” he said.
Preparing to bypass Congress
If Obama’s goal is more executive actions, he’s been preparing for it already. He recently appointed John Podesta, founder of the Center for American Progress, as his counselor.
Podesta specializes in the use of executive authority to bypass Congress.
It recently was reported Podesta will help the White House on “matters related to the health care law, administration organization and executive actions,” with particular focus on so-called climate-change issues, according to a person familiar with the plans.
Podesta is a long-time champion of the use of executive powers, including bypassing the legislative branch to enact progressive change.
In November 2010, he co-authored a 48-page Center for American Progress paper titled “The Power of the President: Recommendations to Advance Progressive Change.”
“The U.S. Constitution and the laws of our nation grant the president significant authority to make and implement policy,” wrote Podesta in the paper’s introduction.
“These authorities can be used to ensure positive progress on many of the key issues facing the country through executive orders, rulemaking, agency management, convening and creating public-private partnerships, commanding the armed forces … diplomacy.”
Podesta stressed: “The ability of President Obama to accomplish important change through these powers should not be underestimated.”
He concluded that the president can manage oil imports, public lands, impact housing policies, stabilize home values, partner with the private sector, manage local school district spending, set education standards, and determine the outcome on a hundred other questions.
How it’s supposed to work
WND reported in 2012 that Michael Boldin of the nation’s Tenth Amendment Center, explained to WND how the system is supposed to work.
“In Article I Section I of the Constitution we learn that all legislative powers reside in Congress. The executive branch has the responsibility to execute the laws passed by Congress. An executive order is not legislation. It is an order issued by the president to enforce laws passed by Congress. This is backed by the declaration that the president ‘take care that the laws be faithfully executed’ made in Article II, Section 3, Clause 5. Thus, executive orders can only be used to carry out the will of Congress (which is only supposed to be passing laws in line with the Constitution), and not to issue new policy.”
Thompson said that’s not the way reality has been playing out lately.
He said some of Obama’s orders appear to be flagrantly unconstitutional, but because it’s a presidential order, it is followed unless some individual or group challenges it – and wins.
“We’ve looked at the issue. Depending on the particular order, there may be material that is unconstitutional,” he said. “But the issue is what are you going to do about it?”
He said the first line of defense against an unconstitutional president should be Congress. They should say, ‘The president is enacting legislation without other branches of government,” he said.
He said, however, if Congress fails to act, then it is up to an individual who is willing to make a fight of it.
Conservative icon Phyllis Schlafly noted Obama’s announcement to create the DREAM Act by executive order fiat.
More at WND