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Executive Orders, Nullification, and Recess Appointments

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With no political capital left and much of his legislative initiatives dead in Congress, President Obama’s administration recently announced that he intends to use executive orders to advance his agenda. According to White House chief of staff Rahm Emanuel, “We are reviewing a list of presidential executive orders and directives to get the job done across a front of issues”. Those issues include everything from budget commissions to environmental law to health care funding.

Of course, executive orders are nothing new. They have been around since at least Lincoln’s so called “Emancipation Proclamation” and probably before that. George W. Bush signed the most ever as president and was rightly criticized by Obama in his campaign for president. This is key because it doesn’t matter which party controls the White House. When push comes to shove and the president can’t get his way he resorts to this underhanded tactic.

But, it’s more than underhanded; it is downright unconstitutional. As schoolchildren, we are all taught that our federal government is composed of three branches. The legislative makes the laws; the judicial judges the laws for constitutionality; and the executive acts as the top cop by enforcing the law. Congress has power to legislate, not the president. The closest he/she comes to this power is his/her ability to advise Congress, “and recommend to their Consideration such Measures as he shall judge necessary and expedient” .

The Founders knew that separating the powers of government into three different branches would prevent any one branch and/or person from becoming too powerful – thus potentially infringing upon the rights of the citizenry. Through executive orders presidents circumvent the process reserved to Congress because they have the force of law and at times have horrendously violated the rights of American citizens. For instance, Franklin Roosevelt issued executive orders that deprived Americans of their property without due process of law by seizing their gold during the Great Depression and that unconstitutionally suspended the writ of habeas corpus by interning Japanese-Americans during World War II. More recently, George W. Bush issued an executive order that allowed his administration to unconstitutionally wiretap the phone conversations of Americans without a warrant. Now, Obama, like his predecessors, is unable to get his unpopular policies through Congress, so he will violate the supreme law of the land by usurping the powers of another branch of government.

But, the current occupier of the Oval Office is not content with stopping there. His aides last month indicated that he will reserve the right to ignore enforcing parts of bills he considers unconstitutional. This is reminiscent of Bush’s statement after signing an anti- torture bill that he would interpret the new law in any way he chose. There are several things wrong with this position. First, the Supreme Court has the power to declare all or parts of laws unconstitutional. Second, if the president doesn’t like a part of a bill then his constitutional recourse is to veto it and hope Congress amends it to his liking. Third, jury and state nullification are considered outside the law. The president is essentially proposing executive nullification – the same thing. Why is there a double standard? Sorry Mr. President, you do not have a line item veto power. You really must accept all or nothing when it comes to congressional acts. Not doing so is unconstitutional and a usurpation of the High Court’s power.

Lastly, this president is also attempting to make unconstitutional recess appointments. Again, presidents have done this in the past. The practice originated in the good old days when Congress was only in session for part of the year. Read literally, the phrase in Article 2 Section 2 of the Constitution giving the president this power reads “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session”. Key to the power is the simple phrase, “all vacancies that may happen during the recess of the Senate”. Obama’s current vacancies happened when the Senate was in session, thus if he waits until they recess he is usurping the power of the Senate to advise and consent to his nominations. When Bush used the power to make John Bolton ambassador to the United Nations, then Senator Obama called Bolton “damaged goods”. Not only is Obama being hypocritical, he again is attempting to commandeer powers that belong to another branch of government.

About Kenn Jacobine

  • STM


    Britain’s constitutional monarchy, which stripped the power of the monarch in 1688 and gave it to parliament as the elected representitives of the people, is actually far less monarchical and in my view the way it is practised in other parts of the commonwealth, a far more democratic system of governance than the US system.

    The Queen currently fulfils the same executive role as a president of the US, but has far less power. She is bound by convention (which in Britain’s unwritten constitution is law) to acquiese to what the Government requires – provided the government is not acting unconstitionally.

    Don’t confuse the absolute monarchies of continental Europe with what the British did to protect the rights of their citizens 100 years before the US did the same thing.

    It’s still my view that the American revolution wasn’t about gaining freedom from oppression – the American colonists were far from an oppressed people – but about a key group of wealthy, powerful Americans maintining and strengthening their grip on wealth, power and prestige.

    I also don’t believe that it’s any coincidence that it came a couple of years after the freeing of James Somersett, a slave “owned” by a colonist and freed before being shipped to Virginia, after the ruling in the Court of King’s Bench in London that effectively set the ball rolling for the emancipation of slaves and ultimately the banning of slavery by the 1830s in the British empire.

    For all their long, loud, hard, crying about freedom from oppression, liberty (an English catchcry long in use there), and all men being born equal, that was only true in the fledgling republic if you were rich and white and owned land. Ordinary Americans couldn’t even vote for many decades.

    If you were black, forget it. It took till the 1960s for that to BEGIN to change.

    And it still makes me wonder how men like Thomas Jefferson and some of the other founding fathers can be held up as beacons of liberty and freedom when they kept their own businesses running through slaves. At the very least, I’d bet many others had black servants.

    There’s something that doesn’t quite jell there in that message given the circumstances. Some thing I can’t reconcile with the myth of American exceptionalsim.

    IMO, Americans need to cut down the myth and start looking at the truth of their own history before it all comes back to bite them on the arse.

    The same way it bit the British on the arse, and bit us on the arse.

    So, no, standards of living don’t have anything to do with monarchs and feudalism.

    They have everything to do with compassion for one’s fellow human being.

    But not just lip service. Rights mean diddly squat if they are just empty words on a piece of paper (a good piece of paper, though, I’ll give you that) written 200 years ago by a bunch of old fat white farts who managed to set up a system of governance that was near identical in function and not that different in form to the one run by the old fat white farts they sought to break away from.

  • STM

    I’m a bit fired up … I just watched Cry Freedom on Pay TV (it’s nearly 1am Monday here), the story of South African newspaper editor Donald Woods, who took up the Steve Biko case in apartheid South Africa before the Afrikaner regime was dismantled.

    It’s no coincidence that the same way the anti-slavery movement grew to epic proportions in London and Edinburgh from the late 1700s, in South Africa, English-speaking whites and the British people and their government were among those at the forefront of the anti-apartheid movement.

  • Glenn Contrarian

    C-shop -

    You’re using a false argument. Compared to Britain at the time, we were a third-world country. We did not have comparable firepower or even a fraction of Britain’s industrial base. What we did have was the all-important logistical advantage – and the assistance of a superpower who opposed the British (France)…which is why we lost in Vietnam. They had that all-important logistical advantage and the assistance of a superpower who opposed us (the Soviets). It really is not much of a stretch to compare our victory in the Revolutionary war to the Vietnamese victory in the Vietnam war…and personally, I think the Vietnamese have earned our respect – they certainly paid the dearest of prices for it.

    Back to the discussion, I used a valid comparison. I compared America’s standard of living, our life expectancy, our health care system, our educational system, and our crime rate to other modern first-world democracies…and in nearly every case we are found wanting despite our overwhelming advantages in GDP and superpower status.

    Is it really so bad, so evil, so ‘unpatriotic’ to objectively compare whose system is better, and to strive towards implementing the system that is better for the nation as a whole…even when that system is not what we have? Please answer that question, C-shop.

  • STM

    Of course, expanding on Glenn’s argument here, the other thing that a lot of Americans don’t realise is that the defeat at Yorktown did not end the war nor dent the British will to fight it.

    What happened was that the Whigs were elected to power in Westminster; they had always been supporters of American self-government, as opposed to George’s little right-wing coterie in parliament, and when George asked for more money to continue the war, they refused … essentially ending the war.

    Indeed, many Britons of the time who were able to register a vote – the same as in America, the most influential and the land-owning – had always been against fighting the colonists because they agreed with their right to self-govern. The war against America was unpopular with Britons not because Britons were getting killed but because it went against the English notion of Liberty that was espoused by many in the nobility and the liberal upper and upper middle/merchant classes of the time.

    Britons getting killed or suffering the odd military defeat has never stopped Britain from engaging in war, or continuing it. At the time of the revolution, they were still involved in a long war with France.

    The defeat at Yorktown didn’t help bolster pro-war sentiment, of course, especially since it was only achieved through the French, who were able to block supply to Cornwallis’s army, but it wouldn’t have been the end of the war had there not been a change of government in London.

    Considering Americans were dealing with a superpower of the era, the result might have been different had it continued.

    I think too that many Americans don’t realise that the founders of the fledgling republic very cleverly used Britain’s own democracy as the means to begin the whole process in the first place.

    Had America been settled by absolutist France, I’d bet London to a brick any anti-government sentiment would have been brutally squashed at the outset, and never allowed to brew.

    That is why at the time France and America made very strange bedfellows. The young America was fighting a democracy even the French enlightenment thinkers thought was one of the most enlightened systems of governance on the planet, whilst getting into bed with cruel, absolutist, intolerant France.

    I still think the circumstances surrounding the American revolution were built on one of the great lies and myths of modern history, and there are people more learned than me who hold the same view.

  • John Wilson

    Kenn #25:

    “Do juries and states have a right to nullify whole or portions of laws passed by Congress? This is what Obama’s aide said he will do – enforce only the portions he says are constitutional.”

    My understanding is that Signing Statements were legitimized to be used in cases where the president wants to resist being forced to enforce an unconstitutional law in the interval before a test case can be directed to the Supreme Court.

  • Glenn Contrarian

    STM -

    but it wouldn’t have been the end of the war had there not been a change of government in London.

    That’s what I dearly love – having my own ignorance being stripped away, particularly when it’s on a subject on which I felt I had sufficient understanding…and particularly when it runs 180-out to what I was taught in school.

    And when one compares the anti-war sentiment in 1770′s England with the anti-war sentiment in America two centuries later – and when one considers we were supported by absolutists France and Vietnam was supported by the equally absolutist Soviet Union – the parallels between our Revolutionary war and the Vietnam war are even stronger. The parallels will never be strictly equal, of course, for the differences thereof are legion, but the similarities should be enough to demand our respect of what the Vietnamese suffered…and achieved.

    What you said has the ring of truth, STM, and please accept my sincerest gratitude for it.

  • John Wilson

    Kenn #141:

    “The liberalism that you and others have espoused on this discussion is all based on emotion and not logic or reason.”

    So what’s illogical or unreasonable about emotion?

    Isn’t emotion, like hope, fear, love, etc., a perfectly logical evolved adaptation technique?

  • STM

    Thanks Glenn, but having said all that, I don’t believe that American independence was a bad thing. Of course, it was implicit Americans’ right to self-govern. But there was a bit more to it than that.

    Everyone benefits from a good, honest look at history … as you might have guessed, my favourite subject at school :)

  • Glenn Contrarian

    Kenn #141:

    The liberalism that you and others have espoused on this discussion is all based on emotion and not logic or reason.

    Yeah, those FACTS in comment #146 are only emotional responses, right?

    Kenn, it’s good to listen to logic and to reason – but both can be twisted just as logic can. That, sir, is why I pay more attention to the FACTS, to the results than to the ‘logic’ or ‘reason’.

    Gather all the FACTS and then use those facts to guide your logic and reason…because if the logic and reason that you’re using don’t fit the FACTS…then your logic and reason are wrong.

  • roger nowosielski


    Very good point, John Wilson.

    Better be careful, though. What Kenn is trying to argue is that “liberalism” is an emotional reaction.

    Of course, he would exempt his own views from being similarly tainted.

  • STM

    Nah, that’s right … his views come from “natural rights” written down by men to become the laws of the state so that they then become part of the statism he claims to deplore.

  • STM

    If social engineering was good enough for the founding fathers, surely it’s good enough for modern America.

  • cannonshop

    #162 That conclusion strongly depends on the competence of the social engineers. OURS aren’t particularly competent (or we wouldn’t, collectively, be IN this mess.)

  • Glenn Contrarian

    C-shop -

    You’re effectively saying “we can’t…because we simply can’t. Never mind that the rest of the free world CAN, we just can’t because we’re America, and Americans just aren’t competent enough to make it happen.”

    The really sad thing is…this is not the first time I’ve heard a BC conservative make the argument that we can’t do it because we’re not as capable as the other countries.

    I’m sorry, but I can NEVER accept that we canNOT do as well for our people as other free countries can.

    I would not accept such an explanation from a child, and I will not accept such an explanation from you. You’re better than this, C-shop…hold yourself to a higher standard!

  • Pat O’Malley

    This is a load of crap.
    Your writing is abysmal and your research is nonexistent.
    Your “facts” are wrong.
    You didn’t bother to check ANYTHING.

  • Def

    Are you sure that Obama’s policies are popular?