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Dr. Harold Pease

Normally I do not write on talk show topics, wherein there exists extensive coverage (how be it little depth), I prefer introducing topics missed or under covered by the establishment news, but too few seem to care about the Constitutional fallout from the President’s most unconstitutional executive order/directive ever. Have we no Constitutionalists left in either party?

There is nothing more clear nor basic in the Constitution than the separation of federal power into three branches, one to legislate, yet another to execute that law, and a third to adjudicate possible violations, when contested, of that law—a division of power held “sacred” until the last few decades. The Constitution reads: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives”(Article I, Sec. I).

The Executive Branch has no authority to make law—any law!!!! Executive Orders are constitutional only when they cite a single, recently passed law of Congress, where that law needs a statement of implementation by the executive branch. Presidential Directives, a type of Executive Order, differs only in defining how that law, passed by Congress, will be implemented. Neither type is to alter, or defy, law formerly passed by Congress.

For years some in Congress have been working on what is called the Dream Act that would extend amnesty and place illegal immigrants on a course toward full citizenship. Lacking popularity, twice it has failed to get the majority vote of both Houses of Congress required by the Constitution thus leaving existing immigration law unchanged; once, between 2008-2010, when the President’s party controlled everything except the Judicial branch. A president can only suggest a need for new law in his State of the Union Address, and either sign or veto a law passed by Congress, which then, if vetoed, must be overridden by a vote of 2/3rds of both houses to become law. That is it. This is the law of the land and the Constitutional procedure violated by President Barack Obama June 16, 2012, when, failing to get a favorable vote from Congress, openly defied Congress and the Constitution by ordering a like measure to that defeated, implemented anyway.

In a news conference he outlined the general parameters of his plan but specifics came from a six-page Memorandum from John Morton, Director of U.S. Immigration and Customs Enforcement (See FEA Number 306-112-0026), to enforcement personnel, which essentially advises ignoring existing immigration law. If left to stand this becomes existing law without the consent of the people through their representatives voiding the role of Congress. Ironically, if a Republican president did the same thing, the Democratic Party would make the same constitutional argument and rightfully demand immediate retraction of the President’s new law under threat of his impeachment.

This is the most open case of contempt for Congress and the Constitution and the President knew it. In March 28, 2011, he said, with respect to the idea of nullifying Congress on the deportation issue. “The notion that I can just suspend deportations just through executive order, that’s just not the case, because there are laws on the books that Congress has passed.”

So why would he now “flip-flop” and knowingly violate the Constitution? Obama sees an inept Congress that has not placed any restraint on his previous unconstitutional executive orders. He brilliantly also sees a way to “buy” the Hispanic vote. If the Republicans resist he has a powerful campaign issue.

His argument for the violation, “It is the right thing to do.” has nothing to do with the fact that he is usurping the powers given only to Congress, and in the most contemptuous way possible, and establishing a precedent for the continued nullification of Congress. Moreover, he is also in violation of his oath of office to “preserve, protect and defend the Constitution of the United States”(Article II, Sec. 1, Clause 8). His failure to do so is “a high crime,” an impeachable offense, which action should be introduced with bipartisan support with 100 signatures in the Senate and 435 in the House. This issue is that clear.

So why should Democrats be concerned and reign in their president? Because if they do not they, in effect, give permission to the next Republican president to defy Congress on something they had previously established as law, like national healthcare for instance, and by a simple Directive he too could not enforce that law. Democrats must see that their failure to insist on a retraction of the Directive forever weakens the sole power of Congress to make all law and places us on the road of government by decree or edict of one man. You must choose the Constitution over party. How does a president’s defiance of Congress differ from what a king or dictator does? It doesn’t. The Constitution is their to protect all parties and all citizens from arbitrary and caprices rule. Please let it work.

Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit