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November 29, 2015 / 17 Kislev, 5776
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A Disdain For The System

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Recent events, including some decisions of the United States Supreme Court reversing over-the-top arrogations of power by President Obama, underscore that the president’s passion for furthering his vision of what’s good for America is not tempered by a healthy regard for our constitutional system of government.

Indeed, he seems to resent being restrained by the Constitution’s prescription for the separation of executive, legislative and judicial power. He constantly seeks to assume a legislative role when Congress doesn’t do his bidding, and we still recall his public rebukes of conservative members of the Supreme Court.

Most strikingly, the court ruled 9-0 that Mr. Obama could not unilaterally declare Congress to be in recess. The president had done just that, when Congress adjourned for a short time and held only rump sessions, so that he could exercise his constitutional power to make recess appointments and avoid having to get Senate approval, as the Constitution ordinarily requires.

To be sure, his efforts to get such approval had been stymied by recalcitrant Republicans. But the solution was unprecedented and inconsistent with the constitutionally prescribed separation of powers, as the Supreme Court held.

Similarly, there is ample Supreme Court precedent relating to the First Amendment as well as legislation to the effect that freedom of religion is high on the list of American values and could not be infringed upon unless there were compelling reasons and no less onerous infringement available. Yet President Obama pushed the idea that religious beliefs against contraception were automatically trumped by his determination that employers would have to pay for contraception insurance even though other, more accommodating, approaches were available. The Supreme Court rejected the president’s position on that as well.

Another example of Mr. Obama’s overreach is his effort at immigration reform. It is no secret the president is furious with Republicans in Congress for blocking his efforts to change immigration laws. But Congress is not budging. So Mr. Obama just directed Homeland Security Department Secretary Jeh Johnson and Attorney General Eric Holder to come up with executive actions he can take without congressional approval by the end of the summer. Once again Mr. Obama is seeking ways to get around the constraints of the separation of powers.

This approach to governance is nothing new for Mr. Obama, who in 2001, when he was an Illinois state senator, said:


If you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote…. But the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in this society. And to that extent, as radical as I think people try to characterize the Warren court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed there by the founding fathers in the Constitution, at least as it’s been interpreted, and the Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. It says what the states can’t do to you. It says what the federal government can’t do to you, but doesn’t say what the federal government or state government must do on your behalf.


Whether one agrees or disagrees with President Obama’s policy goals, it’s hard not to be uneasy about his cavalier dismissal of the American way of government.



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