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The American Spirit, Issue #026, Rise of the Über-President
March 27, 2016

Rise of the Über-President

The most destructive legacy of the Obama administration may be mainstreaming the idea that a president can act unilaterally if Congress doesn’t implement his agenda!

BY ANDREW MIILLER

For almost eight years, the United States has been ruled by a president with the mantra of “We can’t wait for Congress to do its job, so where they won’t act, I will.” In fact, historians may look back upon Jan. 14, 2014 as a tipping point in American history. On this day, President Barack Obama urged his cabinet of executive officials to help him identify ways to advance economic recovery by circumventing the legislative branch of government.

“We are not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need,” the president told reporters before his cabinet meeting. “I’ve got a pen and I’ve got a phone. 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.”

No president in U.S. history had OPENLY justified executive overreach by contending it was necessary to circumvent legislatures because they refused to do what he wanted!

Two weeks later, during his 2014 State of the Union address, President Obama notified both houses of Congress of his decision to go it alone in areas where they refused to act to his satisfaction. One would think an announcement in such blatant violation of America’s tripartite system of checks and balances would elicit an outcry, or at least stunned silence. Instead, the floor of the House of Representatives erupted in thunderous applause.

It really looked like America’s congressional lawmakers were delighted at the notion of a president usurping the checks and balances at their expense.

Georgetown law professor Jonathan Turley, a political liberal, was one of the few legal minds at the time warning of the danger behind this EXECUTIVE POWER GRAB. “The system of separation of powers was not created to protect the authority of each branch for its own sake,” he wrote in a Los Angles Times editorial. “Rather, it is the primary protection of individual rights because it prevents the concentration of power in any one branch. In this sense, Obama is not simply posing a danger to the constitutional system; he has become the very danger that separation of powers was designed to avoid.”

In the same editorial Turley warned, “The United States is at a constitutional tipping point: The rise of an über-presidency unchecked by the other two branches” (emphasis added). America has moved into a dangerous era where the only constraints on presidential power are political, not constitutional!

Expanding Executive Privilege

During the course of his presidency, Mr. Obama has modified and ignored various provisions of the Affordable Care Act with barely a pretense of legality. He has launched a military campaign in Libya without congressional approval. He has appointed high-level “czars” as a means to evade the constitutional requirement that the Senate confirm high-level government officials. He has even asserted the right to kill American citizens without due process if a “high-level official” determines they pose an imminent threat.

When confronted about his record of executive overreach during the summer of 2014, the president taunted his critics: “Middle-class families can’t wait for Republicans in Congress to do stuff. So sue me.”

In November 2014, President Obama issued a major executive action on immigration policy. He instructed the executive branch of government to offer temporary legal status to millions of illegal immigrants. Later, when hecklers interrupted one of his speeches by demanding an immediate end to all deportations, the president responded by saying, “What you’re not paying attention to is the fact that I just took an action to change the law.”

Apologists for the Obama administration will claim this executive action was no different from previous executive actions enacted by former U.S. Presidents Ronald Reagan and George H. W. Bush. What they fail to notice is that both Reagan and Bush were instructing the executive branch to enforce somewhat ambiguous aspects of immigration law that had already been passed by Congress. President Obama’s action was truly historic in that Congress had expressly declined to pass an immigration reform bill. As he himself admitted, his executive action truly did take “an action to change the law.”

Under the U.S. Constitution, Congress writes laws, the court interprets laws, and the president enforces those laws. Executive action is not illegal as long as it falls within the parameter of enforcing laws already passed by the legislative branch. Creating new law via executive fiat, however, is the very definition of an imperial presidency!

A panel of the U.S. Court of Appeals for the Fifth Circuit struck down President Obama’s executive action on immigration reform as unconstitutional due to the fact that it created new law. The case is currently awaiting an appeal to the U.S. Supreme Court. The court ruling on the legality of President Obama’s unprecedented power grab will certainly be another defining moment for the American republic!

In an attempt to prevent future executive decisions from being struck down by the courts, President Obama is increasingly substituting executive actions for executive orders. Unlike executive orders, which are issued as an official catalogued transcript, executive actions are informal orders from the president to his underlings in the executive branch. Judicial analyst Judge Andrew Napolitano recently warned that issuing executive actions instead of executive orders could make it “more difficult and cumbersome” to legally challenge the president’s decisions.

If the separation of powers has eroded to a point where a president can unilaterally enact legislation, America is nothing more than an authoritarian monarchy wherein 51 percent of the people elect their king every four years!

Sprawling Bureaucratic State

The president’s power to direct the executive branch to take legislative action is even more worrying when you realize how big and dangerously off-kilter the executive branch has become over the last century.

When the Framers of the Constitution designed the three coequal branches of government, they were much more equal in personnel size than they are now. In 1790, there were 69 congressional representatives in the legislative branch, 24 federal judges in the judicial branch and approximately 1,000 non-military workers in the executive branch. Today, there are 535 congressional representatives in the legislative branch, 1,769 federal judges in the judicial branch and an astounding 2,840,000 non-military workers in the executive branch.

While the country’s population has increased about 80-fold in the past two centuries, the size of the executive branch has exploded to almost 3,000 times its original size. Almost 3 million federal workers are spread across 15 departments, 69 agencies and 383 non-military subcommittees!

“The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself,” writes Professor Turley in a Washington Post editorial. “It is not just bigger, it is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.”

This so- called fourth branch of government now has a larger impact on American citizens than the other three branches combined. The legislative branch no longer issues the vast majority of “laws” governing the United States. Instead, these “laws” are issued as “regulations” crafted by thousands of unelected, unreachable bureaucrats.

One study found that Congress only enacted 138 public laws in 2007, compared with 2,926 regulations enacted by federal bureaucrats working for the administrative state. A similar study found that federal judges conduct roughly 95,000 adjudicatory proceedings, including trials, each year, compared with 939,000 cases tried by administrative “courts” tied to individual federal agencies in the executive branch.

These adjudicatory proceedings conducted by administrative agencies are often a mockery of due process and based on one-sided presumptions and procedural rules favoring the agency over the accused.

In a speech he gave on Constitution Day in 2010, Harvard Prof. Michael Klarman actually condemned conservatives of constitutional idolatry, citing the rise of the administrative state as both unconstitutional and necessary for the good of the country. “The Framers set up three branches of government—executive, legislative and judicial,” he said. “But today we have a vitally important fourth branch—the administrative state—which is almost certainly unconstitutional in multiple ways according to the original design of the Framers. Yet courts have legitimized administrative agencies, and it’s hard to imagine them doing otherwise.”

While it is true that federal agencies in this so-called fourth branch of government have a great deal of autonomy, the people who run them are still appointed by the U.S. president. So the administrative state is really an outgrowth of the executive branch. When Congress tried to rein back the growth of this sprawling federal bureaucracy in the past, it increasingly found itself blocked by claims of expanding executive privilege.

The rise of the administrative state didn’t begin with President Obama. This dangerous problem has been growing for over a century, since the Woodrow Wilson administration at least. Yet the Obama administration has used the powers of the executive bureaucracy to micromanage people’s lives to a level unprecedented in American history. The current administration has used the powers of the Internal Revenue Service to target the president’s enemies, mostly conservative and pro-Israel groups. It has used the powers of the Justice Department to seize the records of more than 20 Associated Press phone lines in what was called a “massive and unprecedented intrusion.” It has used the powers of the National Security Agency to conduct illegal, covert surveillance programs in violation of the Fourth Amendment, keeping phone and Internet records of millions of Americans with the full cooperation of nine major Internet companies. The revelations just keep coming!

“A growing crisis in our constitution system threatens to fundamentally alter the balance of powers—and accountability—within our government,” wrote U.S. Sen. Ron Johnson and Jonathan Turley in a joint Washington Post editorial. “This crisis did not begin with Obama, but it has reached a constitutional tipping point during his presidency.

There’s an unparalleled spirit of lawlessness behind all of these scandals! Congress and the courts are being sidelined by an out-of-control executive branch ruling via executive action and a vast army of federal bureaucrats!

Victims of the Federal Bootheel

For a century, the public face of federal law enforcement has been the Federal Bureau of Investigation. More recently, however, midnight SWAT-style raids are increasingly likely to come from other federal police forces working for a startling array of lesser-known federal agencies. The list of administrative agencies that now have their own MILITARY-STYLE UNITS includes: the National Park Service, the Postal Inspection Service, the Department of Health and Human Services, the Department of Agriculture, the Department of Labor, the Department of Veterans Affairs, the Bureau of Land Management, the Environmental Protection Agency, and the Fish and Wildlife Service.

In October 2013, armed agents from the Environmental Protection Agency (EPA) showed up in a small Alaskan town to conduct “paperwork” inspections on a small mining operation. The president of the Fortymile Mining Association said that mine operators are accustomed to routine inspections from federal monitors, but are frightened by EPA agents carrying M-16s and assault shotguns. The EPA later released a statement saying that the inspections were not raids but simply part of an “ongoing investigation” into potential violations of the Clean Water Act.

In April 2010, the Food and Drug Administration sent a PARAMILITARY unit to arrest Dan Allgyer of Rainbow Acres Farm for illegally shipping unpasteurized milk to customers across state lines. “U.S. marshals and other federal officers also have conducted similar actions against purveyors of unauthorized milk, cheese and even elderberry juice” (National Review, Feb. 11, 2013). Can you imagine what George Washington would have thought of machine-gun-toting SWAT agents arresting an Amish farmer for selling unpasteurized milk?

Administrative agencies in the executive branch are increasingly setting themselves up as a government unto themselves. Unelected bureaucrats are making law via administrative regulations, trying violations of that law via their own adjudicatory proceedings, and making arrests via their own paramilitary police forces!

Between 2006 and 2016, regulatory administrative agencies have spent over $71 million on items like body armor, riot helmets, cannon launchers and firearms. This figure doesn’t include the $330 million spent on such equipment by traditional federal law enforcement agencies like the FBI, Secret Service and Drug Enforcement Administration.

This militarization of the administrative state has been decades in the making, but it has drastically accelerated under the Obama administration. While the EPA was spending about $10,000 per year on body armor during the final years of the George W. Bush presidency, it has spent $200,000 on body armor so far under President Obama.

With over 2 million bureaucrats in the administrative state and some 120,000 federal law-enforcement officers, any U.S. president who wants to use executive action as a means to circumvent the checks and balances of our constitutional system has the means to do so!

Nationalized Law Enforcement

As if this centralization of power in the hands of America’s chief executive wasn’t enough, voices across the country are now clamoring for the Obama administration to nationalize local law enforcement.

One of the most amazing things about the U.S. Constitution is how it delegates law enforcement to a local level. Currently there are about 760,000 state and local police officers in America with power to make arrests. Combined with the 120,000 federal officers in this country, the police compose a force almost as large as the U.S. military.

America’s Founders were deeply wary of standing armies in peacetime. They could have given the federal government a well-armed federal police agency to “contain and reverse violent threats to domestic tranquility”—but they deliberately didn’t. Instead, they limited the power of the government, the federal government in particular. They wanted to reduce threats to individual liberty.

Above all, the Framers believed that government power should be decentralized so that no one person or branch of government could emerge as a force of tyranny. As James Madison said at the Constitutional Convention in 1787, “A standing military force, with an overgrown executive, will not long be safe companions to liberty.”

There is a reason for the approximately 18,000 state and local law enforcement agencies in the United States. When law enforcement responsibilities are divided among 18,000 agencies accountable to directly elected local officials, it becomes extremely difficult for anyone to set himself or herself up as a tyrant. If a county sheriff abuses his or her office, it is much easier for the local community to elect a better sheriff than it is for that community to change the policies of unelected bureaucrats in Washington, D.C.

Despite the Founders’ reasoning, civil rights leaders and Black Lives Matter activists are now calling for a standing army. After a white South Carolina police officer shot an unarmed black man last spring, racial activist Al Sharpton called for a nationalized police force—even though the officer was arrested and prosecuted at the local level. “There must be national policy and national law on policing,” Sharpton said. “We can’t go from state to state, we’ve got to have national law to protect people against these continued questions.”

President Obama has admitted that he “can’t federalize every police force in the country and force them to retrain.” Despite this admission, however, he is working hard to violate the spirit of the law and force federal control over local police departments. The Obama administration released its Task Force on 21st-Century Policing plan last year to impose federal standards on state and local police forces. Critics of the plan have pointed out that it underhandedly works to nationalize and federalize law enforcement by using federal tax dollars as bribes.

The task force for 21st-century policing was created via executive order. According to the plan produced by this task force, the Department of Justice will provide technical assistance and incentive funding to local police agencies that decide to turn over police data to federal officials while submitting to federal training and oversight.

The practice of bribing state and local governments to interact cooperatively with the federal government in areas where the executive branch lacks the constitutional authority to act alone is called cooperative federalism. This strategy has been used extensively in America since the 1930s. The danger is that it is often impossible for local governments to regain their constitutionally sanctioned role in government after they have surrendered it to the federal government in return for federal tax funding.

The police department in Ferguson, Missouri, recently found this out the hard way. After initially agreeing to cooperate with the Justice Department on police reform, the Ferguson City Council voted to change the terms of the deal after city officials realized the full monetary cost of implementing the agreement. The Justice Department issued a civil rights lawsuit against the City of Ferguson. The police department has since relented and agreed to pay the costs to overhaul its criminal justice system in accordance with federal standards.

Whether or not you agree with the specific police standards the federal government has imposed on Ferguson, the fact remains that the city’s local voters are no longer in charge of their criminal justice system. Bureaucratic members of the federal administrative state now direct the Ferguson Police Department!

Constitutional Tipping Point

Under the current presidential administration, Congress has been reduced to an almost decorative element of this country’s government. The erosion of the U.S. Constitution hasn’t happened because of a coup or a secret plot. It has happened because American citizens have changed. After two centuries of luxury and abundance, we have largely forgotten God and His laws. As a nation, we have turned our back on traditional family values. The majority of people have become almost bored with biblical principles like personal sacrifice and individual responsibility. As a result, we have looked to the government to provide for us, instead of relying on God.

By delegating more and more power to the central authority of a human-run government, American citizens have created an administrative state with the power to confiscate the freedoms of those who oppose it. The presidential administration that musters the support from half the nation can now operate with no constitutional constraints!

Americans have forgotten the maxim: A government big enough to give you everything you want is a government big enough to take away everything that you have.

In the book of Psalms, God warns: “Put not your trust in princes, nor in the son of man, in whom there is no help.”

Only the law of God can bring true happiness and freedom to humanity. The Framers of the U.S. Constitution understood this to a large extent, and so crafted a document to restrain the power of carnal people who sought dictatorial powers to create their own version of utopia, guided only be their own human reasoning.

In his farewell address, President George Washington warned that if respect for the Constitution eroded to a point were the RULE OF LAW no longer restrained political parties, there would be no guarantee of liberty! He said:

It is, indeed, little else than a name, where the government is too feeble to withstand the enterprises of faction, to confine each member of the society within the limits prescribed by the laws, and to maintain all in the secure and tranquil enjoyment of the rights of person and property. I have already intimated to you the danger of parties in the state .… The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation on the ruins of public liberty.

The RULE OF LAW has already disintegrated to the point where the nation is in grave danger of descending into civil war between feuding political factions that no longer care about any sort of law or constitution.

We must see what is happening in America as God does. He does not blame Barack Obama nor any other politician in the way many political commentators do. In the end, these nation-destroying problems are actually correction from God to help us see our sins and repent of them. The spirit of lawlessness that has taken hold in America can only end in the erosion of our freedoms. Only after we realize that there is no freedom without law will God be able to teach us the way to true peace, joy and prosperity! ▪

Remember, "greater is He that is in you than he that is in the world".

Shalom,

Luis Castillo

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