Obama above the law and the Constitution

Today in The Wall Street Journal, Michael McConnell, a former federal judge and law professor, makes virtually the same point about President Obama as John Yoo, formerly of the Bush Justice Department and now a law professor, made this past October.

WSJ illustration

McConnell says that the Obama administration decision to suspend the employer mandate in the ObamaCare law for a year is a blatant abrogation of the constitutional obligation under Article II, Section, which states that the president “shall take Care that the Laws be faithfully executed.”

“This is a duty, not a discretionary power,” McConnell writes. “While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.”

Writing at Fox News in October, Yoo used the same constitutional citation to explain why it was wrong for the Obama to basically legislate by executive fiat a law Congress refused to pass — the DREAM Act.

“Obama has pursued a dangerous change in the powers of his office that disregards the Constitution’s careful separation of power between the branches of the federal government,” Yoo writes. “The Constitution imposes on the president two clear duties – to protect the national security and to ‘take Care that the Laws be faithfully executed.’ Obama is the first chief executive since Richard Nixon to ignore a duly-enacted law simply because he disagrees with it, in clear defiance of his constitutional duty.”

McConnell concludes with this:

“As the Supreme Court said long ago (Kendall v. United States, 1838), allowing the president to refuse to enforce statutes passed by Congress ‘would be clothing the president with a power to control the legislation of congress, and paralyze the administration of justice.'”

But Obama’s law breaking extends far beyond these two incidents.

As an extension of the suspension of the employer mandate in ObamaCare, his administration also suspended the requirement that individuals seeking subsidized health insurance prove their eligibility. Not to mention all those waivers from ObamaCare requirements for hundreds of unions and companies.

As with the DREAM Act, Obama is working to enact “law” to prevent climate change by unilaterally declaring war on coal. As he said in a letter to me and a few other of his closest friends:

“I told Congress in February that if they didn’t take action to fight climate change, then I would.

“Today, I announced a plan of action to make good on that promise.

“My administration is taking steps to cut carbon pollution, prepare our nation for the unavoidable impact of climate change, and put America’s best and brightest to work to solve this issue on a global scale.”

Even though the law requires foreign aid be cut off to a country that has undergone a coup, Obama’s administration refuses to halt the flow of $1.5 billion in U.S. tax money to Egypt.

Though the No Child Left Behind law contained no provision for waivers, Obama’s administration granted waivers.

Tough the 1996 Welfare Programs Act required people on welfare to work or prepare for a job in order to continue to receive federal benefits, Obama’s administration waived the requirement.

Then there was the Obama decision to tell Attorney General Eric Holder to not defend in court the Defense of Marriage Act.

Don’t forget the regulatory contortions the administration attempted to get around the fact ObamaCare unconstitutionally interferes with the First Amendment rights of the Catholic Church.

Obama missed four deadlines for submitting a budget to Congress. He missed the deadline to report on planned defense cuts. He missed the deadline to report on Medicaid costs.

In 1868, the House impeached President Andrew Johnson for defying the Tenure of Office Act, which prohibited him from firing anyone from Lincoln’s cabinet. Johnson fired Secretary of War Edwin Stanton anyway. The Senate refused to convict by a single vote.

The Constitution says:

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

How many does it take? Nonfeasance of office is surely at least a misdemeanor.

59 comments on “Obama above the law and the Constitution

  1. Dave Presher says:

    I would be curious, Thomas, if this is an Obama thing or has happened with other President’s. I know most administrators of any regulations/laws are often stuck with laws and rules that aren’t practical even if well intended. With the length of time it takes for a new law to be implemented it can stall something really important. I would imagine ethically it takes place too. I can’t imagine being the editor of a newspaper that the publisher or advertising department didn’t make decisions really complicated for you. It’s easy to publish the truth, since you are deciding what to publish then you can easily dodge the question by simply not publishing that your biggest advertiser is a crook for example. Of course that decision could cost lots of people jobs or readers of the paper thus the inevitable ethics, business discussions.

    Let’s use Egypt as an example. If the law was followed to the letter it would be in both Republican and Democratic leaders a real problem. You will find some who disagree, more if they can easily find a way to make it political; but both parties, diplomats etc. would want to see where Egypt goes before punishing a country that is so important to world stability. It is a fluid situation; however a change was in our best interest and if they hold elections within a year or so, that are democratic, is that really a good move? No..probably not.

    I enjoy your thoughts and columns. In this case you are referring to something that has been going on with all President’s and it appears a nice way to zing Obama for something that has been done by all. It’s like using a fact out of context to make a point. I am not an Obama fan at all; I am a Thomas Mitchell fan and when you turn your piece from a good solid thinking and a course on ethics to..politics I feel like you let yourself and the reader down.

    Dave Presher

  2. In response to the “all presidents do it” contention, this is what McConnell writes:

    “The Justice Department’s Office of Legal Counsel, which advises the president on legal and constitutional issues, has repeatedly opined that the president may decline to enforce laws he believes are unconstitutional. But these opinions have always insisted that the president has no authority, as one such memo put it in 1990, to ‘refuse to enforce a statute he opposes for policy reasons.’

    “Attorneys general under Presidents Carter, Reagan, both Bushes and Clinton all agreed on this point. With the exception of Richard Nixon, whose refusals to spend money appropriated by Congress were struck down by the courts, no prior president has claimed the power to negate a law that is concededly constitutional.”

    Politics is one thing, but the Constitution is quite clear. I wonder if the part about a president not enforcing a law he thinks unconstitutional is not stretching it a bit. Isn’t that for the Supreme Court to decide?

  3. Rincon says:

    By making itself impotent, Congress has pushed us closer and closer to dictatorship. They have left a huge vacuum that demands to be filled. In Egypt’s case for example, Obama’s decision may well be unconstitutional, but who’s going to take him to court for it?

  4. Since the Supreme Court ruling on Prop. 8, who has “standing” to take him to court?


  5. dave presher says:

    Thomas thanks for the response. Points well taken. Nixon and Obama do pop up a lot, bit of a stretch; but they have a lot of similarities at times. The potential for the abuse of powers is real. Rincon’s point, while not a direct argument, rather a point of operation that to have congress so perpetually stuck and unable to pass a bill on just about anything of substance may make doing the best for the country illegal. A Paradox?.. a Condundurm? Or simply Illegal?

  6. Simply illegal.


  7. Nyp says:

    I really hope the Congressional Republicans try to impeach him.

    That would be awesome.

  8. Anonymous says:

    Hey, is that the same John Yoo who said that President Bush had the legal authority to torture people because of something he called the theory of “unitary executive”?

  9. Steve says:

    Yep, Obama is truly Bush’s fault.

  10. It is always about partisanship with you, Petey, never about principle or rule of law or constitutionality or morality or ethics.

  11. Anonymous says:

    Yeah, that’s me. No ethics or morality. Just like all other liberals.

  12. Anonymous says:

    Oh yeah, it might also have something to do with section 1514 Part II of Subtitle F of Title I of P.L. 111-48, which grants the Secretary of Health and Human services discretion to postpone the large employer group reporting requirement.

    But by all means, go ahead and vote for impeachment. In fact, any Republican Congressman who seriously believes what you write above has a constututional responsibliity to support impeachment.

  13. Vernon Clayson says:

    There will be no impeachment proceedings, that would require the scoundrels in the Congress to admit they were wrong on Obama from the beginning. They thought they could use him but he turned the tables on them, they became his lap dogs.

  14. Steve says:

    It’d be funny if some Democrat began calling for investigations into administration dealings…

    Oh, look:


    Damn crackpots.

  15. Milty says:

    “Oh yeah, it might also have something to do with section 1514 Part II of Subtitle F of Title I of P.L. 111-48, which grants the Secretary of Health and Human services discretion to postpone the large employer group reporting requirement.”

    If all that’s being suspended is the reporting requirement, does that mean that when employers submit their reports in 2015, that they will be fined for not having provided their full time workers with health insurance during 2014? Is it possible that there will be retroactive fines to be paid in January 2015 for failure to provide coverage in 2014?

  16. Athos says:

    That’s hitting the nail on the head, Milty! After all, we ARE dealing with the IRS, aren’t we?

    (and they would never let a mistake run several years, building up interest AND penalties for failure to report income, would they???)

  17. Athos says:

    As to Ø comparisons, Nixon isn’t bad, but Jim Jones is better. (As in drinking the cool aid could prove to be fatal!)

  18. Since both flavors of klepto-republicrats love Big Government, it is unlikely that any in Congress would act to keep executive power within Constitutional boundaries. The Republicans will profit from increased presidential power next time around. It’s just a game played to infuriate the hoi polloi until they beg to have their corrupt fedbots replaced by the ultimate in a Hegelian Dialectic anti-thesis, Global Governance.


  19. Athos says:

    I don’t know, Winston. Maybe I have a dream…

    My dream is that these career politicians have finally gone too far, and the American people rise up and throw off this oppression.

    After all, it DID happen once before ….. in a land far away……

  20. Athos, I’d like to see the American people exercise the Declaration’s escape clause (“But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security”), but 25 years of watching this has only proven to me that the govbots will push the populous only far enough to slightly awaken the sleeping giant, then expertly back off until it slumbers again. This is besides the fact that so many people are dependent on government largesse that they won’t bite the had that feeds them.

    Frankly, unless we suffer a financial collapse, something I’ve been expecting since the debt was “only” $4.3 trillion, I doubt the average American has the intestinal fortitude to do anything about his slow march towards enslavement, under the guise of being taken care of.

    The false left/right paradigm has prevented liberty-loving people from uniting to recognize the partisan shackles being forged around their wrists, and any independent-minded people are marginalized and demonized as crackpots by the MSM (“Truthers”, “Birthers”, “Anti-GMO”, “Anti-War”, “Preppers”, etc.).

    I don’t know how this will all shake out, but, like Benjamin Franklin, I know that “God governs in the affairs of men. And if a sparrow cannot fall to the ground without His notice, is it probable that an empire can rise without his aid?”

    And, like Patrick Henry, I also know our last chance to defeat tyranny lies in our natural right to defend our lives, liberty and property, and that we must “Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.”

    And, I also agree with Claire Wolf: “America is at that awkward stage. It’s too late to work within the system, but too early to shoot the bastards.”

  21. Anonymous says:

    So you guys are for armed rebellion against the United States of America.

  22. Rincon says:

    Even if they’re for revolution, they won’t get it for a long time. I can think of only one major national news magazine in print at this time, but there must be at least 30 Women’s magazines and a bunch of magazines aimed at men like Sports Illustrated, Car & Driver, etc. Politics greatly affects all of our lives, but the concerns of the American people appear to lie elsewhere.

  23. Oh, pray tell, no, Anonymous, perish the thought! How could anyone ever decide that armed rebellion is better than living under tyranny?!?!

  24. Steve says:

    Typically takes about 25% of the population before any kind of insurrection could have a chance.

    Not happening.

    Shhh, don’t tell nyp…
    Its just real fun upsetting liberals with talk like that.

  25. Anonymous says:

    so, Steve, you would like an armed uprising against the government of the United States of America, but you fear that there is not currently enough popular support for it to succeed?

  26. Steve says:

    It’d be funny if some Democrat began calling for investigations into administration dealings…

    Oh, look:


    Damn crackpots.

  27. Nyp says:

    So you think Ron Perleman is a big Democrat??? That’s a scream.

  28. NYP, welcome to this thread. Check my quotes yet? And you didn’t mention my trutherness. I’m so disappointed…

    War is Peace; Freedom is Slavery; Ignorance is Strength

  29. Steve says:

    Ron Pearlman….smh

    I am reasonably sure Eric Schneiderman and Claire McCaskill are both Democrats and both are calling for investigating the Obama Administration.

    Now isn’t that funny.
    Damn those crackpots anyway.

    nyp gets extra credit for reading to the end. Nice attempt at a misdirect.

  30. Nyp says:

    So you think Ron Perelman is a big-time Democrat?
    That’s funny.

  31. Steve says:

    I am now certain Eric Schneiderman and Claire McCaskill are both Democrats and both are calling for investigating the Obama Administration.

    Now, THAT is funny.
    Damn those crackpots anyway.

    Ron Pearlman….smh

  32. Anonymous says:

    Best of luck w/ your latest pseudo-scandal.

  33. Anonymous says:

    BTW, do you know who serves on the board of that vaccine company that you have gotten into such a lather about? Eric Cantor’s wife.

  34. Steve says:

    Democrats call for investigation, yet its MY pseudo scandal….I love the liberal “thought” process.

    Even better, Obama in bed with Eric cantors wife! You guys are hilarious!

  35. Anonymous says:

    the other company director – Francis Townsend, George W. Bush’s counter-terrorism coordinator.

  36. Steve says:

    Yep, it is truly a FACT.

    Barack Obama IS George W. Bush’s fault!

  37. I just love Judge Andy!


    BTW, anon, thinking Americans are now looking beyond the partisan BS. I don’t care which party is corrupt, or which party ignored the Constitution first, or which party tries to destroy our rights, they must be held accountable or our nation is destined to collapse into tyranny. The old ploy of pointing fingers at the other guys is coming to an end.

  38. Anonymous says:

    Isn’t Andrew Napolitano another one of these guys who thinks that Abraham Lincoln was a tyrant? Just like that guy who co-wrote the book with Rand Paul?

    Hey – do you agree with Napolitano that it was wrong to take out Anwar Al-Awlaki?

  39. That’s right, anon, just attack an item or two of someone’s belief system instead of responding to the bigger picture presented, i.e., the federal government, especially the executive, operating outside of Constitutional powers, which is usurpation, if not tyranny, no matter whether Bush or Obama does it.

    Oh wait, didn’t Lincoln operate beyond his Constitutionally delegated powers when he suspended habeas corpus, just because it helped him prosecute a questionable war?

    Oh, and didn’t Obama ignore “due process” when he ordered the execution of U.S. citizen Anwar Al-Awlaki?

    Oh, that’s right, it says right in the preamble to the Bill of Rights that they’re null and void during a war, and the fedbots can do as they damn well please to win. I guess even the Father of the Constitution forgot to read that part!

    “In time of actual war, great discretionary powers are constantly given to the Executive Magistrate. Constant apprehension of War, has the same tendency to render the head too large for the body. A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence against foreign danger have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.” – James Madison

  40. Anonymous says:

    OK, so yet another conservative believes that it was wrong to take out Al-Awlaki.

    And that Lincoln should have been impeached.

  41. Athos says:

    Wow. Reading into petey’s comments (anonymous, please!), I get the feeling that he LIKES tyranny.

    The only people (I can think of) that LIKE tyranny would be the friends of the tyrant (FOT??), right?

    As to revolution, what percent were Torry’s, during Our Revolution? I seem to remember the number was 40%, right? And it is my belief that it required (and GOT) a miracle (from God) for us to win our independence from the British.

  42. Athos says:

    Big things are afoot! (at the Circle K!)

  43. Anonymous says:

    “OK, so yet another conservative believes that it was wrong to take out Al-Awlaki.

    And that Lincoln should have been impeached.”

    Got that backwards. It was wrong to take out Lincoln, and Al-Awlaki should have been impeached.

  44. nyp says:


  45. Please, anon, I am curious as to how some people see (or not see) growing tyranny. I believe that there are certainly individual tolerances for an increasing police state, or the usurpation of natural rights. Do you believe our Founding Fathers were justified in throwing off King George and creating our Constitutional Republic, or would you have had tolerance for that level of tyranny and stood firm with the Tories?

    Please, 500 words or less…

  46. The imperial tax burden in colonial times was 4 pence ($1.50) per capita or about 0.1 percent of family income. Provincial taxes were about 2 shillings ($9) per capita or less than 1 percent.

    Today the revolting tax burden — federal, state and local — is closer to 50 percent and climbing. Now, that is a yoke worth throwing off.


  47. Anonymous says:

    I would’ve stood firm with the Tories, of course. They were my kind of people, elitists whose primary interest was keeping peasants like you in their place.

    For the same reason, today I stand firm with President Obama and the Democratic Party.

    When will you people ever learn to accept the permanence of your lower level status in our society?

  48. nyp says:

    Yeah, that’s right. Those liberals are just a bunch of elitists. Elitists who are simultaneously dependent on welfare. Sort of a bottom-rung elitism. That must be it.

  49. Steve says:

    Liberals are the elite, they have the power and they create the dependent class who keep voting more liberal into office.

    You guys got a great scam going.
    I will be the first one ROTFLMHO when it all comes crashing down on your unsuspecting ass’s.

    (:evil: 😈 Donkey, get it?)

  50. Nyp says:

    So is the “dependant class” elite or non- elite. And if they aren’t elite, how can they be liberal?

  51. Anonymous says:

    I never claimed to be a liberal, just an elitist. That means that I’m part of a class that’s smarter and more adaptive than the lower classes. As such, we feel that we have a right, if not an obligation, to dictate how everyone should live to create a society that conforms to our way of thinking.

    Since we’re elitists, we understand that we can’t impose this society by ourselves simply because we don’t have the numbers on our side. Fortunately, there’s an underclass (the people at the bottom of society) that is susceptible to being controlled and dominated by us to further our interests.

    With the support of this underclass that we control, we of the elitist class can control and dominate the rest of society (primarily the middle class) to eventually create the society that conforms to our way of thinking.

  52. nyp says:

    That’s wonderful. Straight out of Herbert Marcuse. I am awed at how this inverted Marxism has come to dominate contemporary conservative thought.

  53. Anonymous says:

    It’s wonderful that there are well intentioned dupes like Nyp around for those of us in the elitist class to manipulate for our own purposes.

    As the population of Nyps increases in this country, we come ever closer to achieving our goals.

  54. nyp says:

    You mean I’m not an elitist myself — merely a dupe of the elitists? How insulting.

    The addition of the concept of the “useful idiot” to your class-warfare rhetoric means your political theory is moving backwards from New Left to Lenninism.

  55. Anonymous says:

    Nyp, if you were an elitist, you would be fully in agreement with what I’ve written.

    Since you want to argue about it, it’s obvious that you’re beginning to understand how you’ve been used by us. You find that thought hateful, and yet you find it difficult if not impossible to throw off the ideology that we’ve manipulated you into taking on.

  56. nyp says:

    It’s like it is 1971 at Oberlin and I’m in the editorial office of a radical student newspaper.

  57. Anonymous says:

    That’s the spirit, Nyp. With people like you on our side, we can’t lose.

  58. Athos says:

    The correct moniker for petey is “useful idiot”, anny.

    Once we’re all back in our boxes, what new toys will you elitists let us play with??

  59. Anonymous says:

    I mean the argument here was that “nonfeasance” was enough to impeach. Trump is arguing in court that if he bombed every blue state in the country, killing tens of millions of people in the process, with the intent to win the next “election” that the country could do nothing.

    When will enough be enough I wonder for principled people to say enough is enough?

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