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Democracy v. President Obama

June 27, 2014

In a unmistakable rebuke, the Supreme Court of the United States, ruling in the case of NLRB v. Noel Canning unanimously decided that President Obama overreached his constitutional authority by making recess appointments to the NLRB while the Senate was not in recess. Done, and done.

The Democratic Party spin machine went into high gear. Spokespersons for the losing side immediately declared that SCOTUS got it wrong and pointed to the fact that the President has issued far fewer executive orders than his predecessors.

That ignores the underlying premise. It is not about output, it is about intent and outcomes. This White House has consistently shown a total lack of interest in governing by the normal standards in play in a representative constitutional democracy. Whether that is due to ego, ideology, incompetence  or simple laziness is not the point.

This president has shown a contempt for the rule of law that is all the more shocking given his education as an attorney dealing with constitutional law. It would appear that he studied the Constitution with the sole aim of learning how to most effectively subvert it.

SCOTUS did not rule on that underlying issue, but they may have the chance to do so, given that House Speaker John Boehner, representing the entire legislative branch, is seeking to challenge the President on that exact premise. To do that, they must go through the process of achieving standing with the Supreme Court, i.e. prove that Congress, and particularly the House of Representatives is the injured party and can file as the plaintiff.

Some question that move, calling it partisan, costly, time-consuming and likely ineffectual.

The problem is, it seems to be the only way, given the current makeup of Congress, to curtail the power of the executive branch to govern by decree rather than due process.

Our country cannot challenge its chief executive or effect removal based on a vote of no confidence, as is done in some other countries. Our choices are to pass a law restricting or defining the scope and intent of executive orders, impeach the president, or ask the courts to issue a definition of executive branch overreach via a specific ruling.

Option one is DOA upon arrival on the Senate floor. The Senate is the body that can draft laws that would address the issue, and the chances of Harry Reid doing that are zero.

Option two is a possibility, but even if successful, it would not address the larger issue going forward. It would be like killing one spider and hoping that there would be no more cobwebs.

Option three would define the boundaries of executive orders. Critics of Speaker Boehner’s move point out that it could backfire on Republicans if a Republican president wanted to get around a partisan Congress in the future.

That’s exactly the point. Our government is supposed to be in place to govern for the country’s greater good. None of its branches are supposed to be the public relations and operational arms of any political party or ideological splinter group.

To file any suit, you must first have a plaintiff. In this case, perhaps the filing should be titled  Democracy v. Barack Obama.

Speaker Boehner’s move to involve the courts is not about him, his political affiliations, or even Barack Obama. It is about the survival of our democratic form of government.

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