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Barack Obama: Master Manipulator of the Constitution

Obama Constitutional Manipulator

Conservatives are prone to say that President Barack Obama doesn’t understand the Constitution or that he “doesn’t get” some aspect of constitutional law or construction when he acts in an extra-constitutional or unconstitutional manner, such as his attempt to grant “executive amnesty” to millions of illegal aliens or what is now on the front pages of the news, engage the Islamic Republic of Iran in a treaty without the advice and consent of the Senate.

To those who believe that Obama is engaged in these divisive and destructive acts because he doesn’t understand the Constitution, we say Obama isn’t destroying the comity upon which all democracies exist out of ignorance or out of some resolvable difference of opinion over constitutional construction – he knows exactly what he is doing as he deconstructs the American republic.

Obama knows well the lesson of Worcester v. Georgia (a case regarding the removal of the Cherokee Indians from the State of Georgia).  After Georgia lost in the Supreme Court, President Andrew Jackson refused to enforce the decision against the state and instead called on the Cherokees to relocate or fall under Georgia's jurisdiction – directly contradicting the Supreme Court’s decision.

Although Jackson is widely quoted as saying, "John Marshall has made his decision; now let him enforce it," his actual words to Brigadier General John Coffee were: "The decision of the supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate."*

Obama understands very well that as President he controls the usual agencies governments use to coerce compliance with their policies; the military, law enforcement, the instruction of executive officials, and ambassadors to foreign nations.

What he is doing is something that the Framers of the Constitution foresaw, and sought to guard against by giving Congress a counterbalancing power – the power of the purse.

Unfortunately, the Framers erred by assuming that men and women of conscience and integrity equal to their own would follow them in governing our Republic, especially in Congress.

What Obama is doing now is what a great football running back or play caller does – he finds the “seams” in the defense and runs plays against it.

And so, Obama is running plays against his political and cultural opposition by finding “seams” in the Constitution, and using them to accomplish political and policy goals that the constitutional system of checks and balances maintained by the other two co-equal branches of government would never otherwise empower him to achieve.

In the case of “executive amnesty” President Obama said on some 22 different occasions that he did not, as President, have the authority to unilaterally grant amnesty to millions of illegal aliens.

But, as we noted in our article “The Founders Foresaw Obama, But Not Boehner And McConnell” he took the measure of his opponents and correctly recognized that they had not the integrity nor the political will to use the power the Constitution bestows upon the legislative branch to stop him – the power of the purse.

Obama proceeded to grant “amnesty by memo” simply by directing agencies of the executive branch to undertake extra-constitutional and unlawful acts knowing that Congress wouldn’t defund it, and the individual government employees designated to carry it out would be too cowed or worried about next month’s mortgage to refuse to carry out an illegal or unconstitutional act, even though the law theoretically protects them from retribution in such a situation. (See CHQ “Federal Employees Are Under No Obligation To Carry Out An Illegal Order”)

Understanding that Congress, the strongest and most obvious constitutional counterweight to his power-grab on amnesty was out of the fight, Obama had already amnestied some 100,000 illegal aliens before Judge Andrew S. Hanen found the states to have standing to oppose the President and issued a temporary injunction, presumably putting the program on hold until it works its way through the courts.

Obama’s “working the seams” of the Constitution is now also on full display in his planned nuclear treaty with Iran.

Make no mistake about it, whatever Obama wants to call it, the deal to legitimize Iran’s nuclear weapons program is a treaty and under Article II, Section 2, Clause 2 of the Constitution it should be submitted to the Senate for its advice and consent.

Except, what if Obama has found another “seam” in the Constitution that might allow him to bypass the Senate and the need to convince two-thirds of that body that Iran can be trusted?

As our friend Andrew C. McCarthy pointed out in an astute article for National Review,  “Obama Can’t Enforce his Iran Deal on the Country without Congress’s Consent” it is looking more and more like Obama plans to run the agreement with Iran through the United Nations, not the United States Senate.

As Andy McCarthy documented, according to Iranian foreign minister Mohammad Javad Zarif the deal under negotiation “will not be a bilateral agreement between Iran and the U.S., [emphasis ours] but rather one that will be concluded with the participation of five other countries, including all permanent members of the Security Council, and will also be endorsed by a Security Council resolution.” He hoped it would “enrich the knowledge” of the 47 senators to learn that “according to international law, Congress may not modify the terms of the agreement.” To do so would be “a material breach of U.S. obligations,” rendering America a global outlaw.

According to McCarthy, Obama and the mullahs figure they can run the following stunt:

We do not need another treaty approved by Congress because the United States has already ratified the U.N. charter and thus agreed to honor Security Council resolutions. We do not need new statutes because the Congress, in enacting Iran-sanctions legislation, explicitly gave the president the power to waive those sanctions. All we need is to have the Security Council issue a resolution that codifies Congress’s existing sanctions laws with Obama’s waiver. Other countries involved in the negotiations — including Germany, Russia, and China, which have increasingly lucrative trade with Iran — will then very publicly rely on the completed deal. The U.N. and its army of transnational-progressive bureaucrats and lawyers will deduce from this reliance a level of global consensus that incorporates the agreement into the hocus-pocus corpus of customary law. Maybe they’ll even get Justice Ginsburg to cite it glowingly in a Supreme Court ruling. Voila, we have a binding agreement — without any congressional input — that the United States is powerless to alter under international law.

And if Obama were to follow that script, and there’s every indication that he will, then Obama would indeed appear to have found another constitutional “seam” that would allow him to bind the United States to a treaty without Senate approval.

Except, as McCarthy points out, “international law” is more a matter of power than actual law because there’s no power or combination of powers likely to enforce “international law” on the United States should we choose not to go along with it.

What’s more, as McCarthy notes, treaties and UN promulgations of various sorts are not “self-executing,” as the legal lexicon puts it — meaning they are not judicially enforceable and carry no domestic weight. Whether bilateral or multilateral, treaties do not supersede existing federal law unless implemented by new congressional statutes. And they are powerless to amend the Constitution.

But what if Obama simply chooses to conduct our foreign policy on the basis that whatever agreement he reaches with Iran is binding on the United States?

Presumably, without action from Congress he could conduct our relations with Iran (as he is doing with Cuba) more or less in defiance of Congress and public opinion at least until January 20, 2017.

As Andy McCarthy pointed out, the Supreme Court has held that the president cannot usurp the constitutional authority of other government components under the guise of his power to conduct foreign affairs. Moreover, even a properly ratified treaty can be converted into domestic law only by congressional lawmaking, not by unilateral presidential action.

We agree with Andy McCarthy's take on the Iran nuclear weapons deal, and the fact that 47 Republican Senators, led by Senator Tom Cotton, appear ready to fight back is an encouraging sign.

But, once again, Obama has found a “seam” in the Constitution.

At the end of the day, no matter how eloquently Senators express themselves in letters, the only way an Obama-led deal to legitimize Iran’s nuclear weapons program can be stopped is for Congress to use its constitutional powers of the purse to prohibit the Obama administration from spending any money on implementing it. As with the amnesty fight, Congress must have more than good intentions, it must actually vote to stop Obama – and use every bit of its constitutional authority to make it stick.

*Worcester v. Georgia (1832), entry in the New Georgia Encyclopedia by Tim Alan Garrison, Portland State University, Portland, Oregon, (04/27/2004) http://www.georgiaencyclopedia.org/articles/government-politics/worceste...

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Congress is obviously made up

Congress is obviously made up of men and women who no longer honor the Constitution and are in fact complicit with this President's violations of the Constitution. For if one reads the oath they all take upon their swearing in, one must wonder , why bother, as few have stood up and called out this, out of control administration. How sad that so few honorable men/women exists in Congress.

Ethics and Integrity

I like the comment about the character of congress. The Framers erred by assuming that men and women of conscience and integrity equal to their own would follow them in governing our Republic, especially in Congress.

We have come a long way since the ratification of the constitution. It seems to have been downhill all the way.