Save the Republic

By M. Northrup Buechner

[This article was originally published on line by Forbes.com on November 18, 2013, with the title “Obama’s Disdain For The Constitution Means We Risk Losing Our Republic.” This version is slightly revised.]

Since President Obama signed the Affordable Care Act into law, he has changed it six times. Most notably, he suspended the employer mandate last summer, and last week he changed the provision that cancelled individual insurance policies.

The New York Times (11/15/13) described this last change as “a sweeping assertion of presidential authority to delay enforcement of certain provisions of federal law.” That is the narrowest possible interpretation, but still, where did Mr. Obama get that authority? From the premise that he is not bound by the Constitution.

The Constitution authorizes the President to propose and veto legislation. It does not authorize him to change existing laws. The changes Mr. Obama has ordered in Obamacare, therefore, are unconstitutional.

Why is he doing this? For the worst possible reason. “[T]o avoid opening the measure to legislative attack in Congress,” The Times says. In other words, to keep it out of the hands of the people’s representatives because the Constitution gives them, and only them, the power to write laws.

By changing the law based solely on his wish, Mr. Obama has acted on the principle that the President can rewrite federal laws and—since this is a principle—not just this law, but any law. It is appalling that Mr. Obama has taken this power at the behest of Congressmen who, like Mr. Obama, have sworn to defend the Constitution—to whom their oath evidently meant, and means, nothing.

What is the effect of vitiating the Constitution, of establishing the principle that the President can change laws when he wants to?

The time will come when Congress passes a law and the President ignores it. Or he may choose to enforce some parts and ignore others (as Mr. Obama is doing now). Or he may not wait for Congress and issue a decree (something Mr. Obama has done and has threatened to do again).

Mr. Obama has not been shy about pointing out his path. He has repeatedly made clear that he intends to act on his own authority. “I have the power and I will use it in defense of the middle class,” he has said. “We’re going to do everything we can, wherever we can, with or without Congress.” There are a number of names for the system Mr. Obama envisions, but representative government is not one of them.

If the President can ignore the laws passed by Congress, of what use is Congress? The President can do whatever he chooses. Congress can stand by and observe. Perhaps they might applaud or jeer. But in terms of political power, Congress will be irrelevant. Probably, it will become a kind of rubber-stamp or debating society. There are many such faux congresses in tyrannies throughout history and around the globe.

Mr. Obama has equal contempt for the Supreme Court. In an act of overbearing hubris, he excoriated Supreme Court Justices sitting helplessly before him during the 2010 State of the Union address—Justices who had not expected to be denounced and who were prevented by the occasion from defending themselves. Mr. Obama condemned them for restoring freedom of speech to corporations and unions.

Again in defiance of the Constitution, President Obama made four recess appointments in January 2012, when the Senate was not in recess. Three courts have found that his appointments were unconstitutional, and the Supreme Court has agreed to take up the case. If the Supreme Court finds against him, what will Mr. Obama do?

We can get a hint by looking at how other parts of his Administration have dealt with Court decisions they did not like.

The Attorney General’s Office is the branch of government charged with enforcing federal laws. After the Supreme Court struck down the key provision of the Voting Rights Act of 1965, Attorney General Holder announced that he would use other provisions of the act to get around the Court’s decision.

The Supreme Court has defined the standard for sexual harassment as “severe, pervasive, and objectively offensive” behavior to a “reasonable person.” In open defiance of that ruling, the Obama Department of Education has declared a new definition of sexual harassment for colleges, that is, “any unwelcome conduct of a sexual nature,” including “verbal conduct,” even if it is not objectively offensive—thus reinforcing the reign of terror over sex on college campuses. If a young man’s request for a date turns out to be unwelcome, he is guilty of sexual harassment by definition.

The lack of respect for the Supreme Court by the Obama administration is manifest. They feel bound by the Court’s decisions only if they agree with them. If they disagree, it is deuces wild; they will embrace any fiction to nullify the Court’s decision.

The direction in which Mr. Obama is taking us would make possible the following scenario. A Republican Congress is elected and repeals Obamacare over a Democratic President’s veto. The President refuses to enforce the repeal. The Supreme Court rules that the President’s refusal is unconstitutional. The President denounces that ruling and refuses to be bound by it.

If the President persists in rejecting all authority other than his own, the denouement would depend on the side taken by the Armed Forces. Whatever side that was, our national self-esteem would be unlikely to recover from the blow of finding that we are living in a banana republic.

The shocking fact is that our whole system of representative government depends on it being led by an individual who believes in it; who thinks it is valuable; who believes that a government dedicated to the protection of individual rights is a noble ideal. What if he does not?

Mr. Obama is moving us away from our traditional system of checks and balances and toward the one-man-rule that dominates third world countries. He has said that he wants a fair country—implying that, as it stands, the United States is not a fair country—an unprecedented calumny committed against a country by its own leader.

What country does he think is more fair than the United States? He has three long years left in which to turn us into a fair country. Where does he intend to take us?

Mr. Obama got his conception of a fair country from his teachers. Their ideal was and is egalitarianism, the notion that no one should be any better, higher, or richer than anyone else. A fair country is an unfree country because it is regimented to prevent anyone from rising too high. Combined with a dollop of totalitarianism, egalitarianism has replaced communism as the dominant ideal in our most prestigious universities. Mr. Obama and his colleagues are the product of those universities, and they have their marching orders.

The most important point is that Mr. Obama does not consider himself bound by the Constitution. He could not have made that more clear. He has drawn a line in the sand and we cannot ignore it.

Those who currently hold political office, and who meant their oath to defend the Constitution, need to act now. Surely, violation of the Constitution is grounds for impeachment and charges should be filed. In addition, there are many other actions that Congressmen can and should take (Congressional hearings, for example)—actions that will tell Mr. Obama that we have seen where he is going and we will not let our country go without a fight.

At the close of the Constitutional Convention of 1787, Benjamin Franklin was asked what form of government had been created. “A republic,” he replied, “if you can keep it.”

We are losing it. If Mr. Obama’s reach for unprecedented power is not stopped, that will be the end. Everyone who values his life and liberty should find some way to say “No!” “Not now!” “Not yet!” “Not ever!”

M. Northrup Buechner is Associate Professor of Economics at St. John’s University, New York.