Commentary Magazine


Topic: executive orders

The President Versus the Constitution

Conflicts between the legislative and executive branches are as old as the republic. But in recent years, the growing power of the presidency has added new urgency to these issues. That’s the context of the decision of House Speaker John Boehner to sue the president for overstepping his authority. It’s also the backdrop to the interesting constitutional arguments in play in today’s U.S. Supreme Court decision on the president’s power to make recess appointments.

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Conflicts between the legislative and executive branches are as old as the republic. But in recent years, the growing power of the presidency has added new urgency to these issues. That’s the context of the decision of House Speaker John Boehner to sue the president for overstepping his authority. It’s also the backdrop to the interesting constitutional arguments in play in today’s U.S. Supreme Court decision on the president’s power to make recess appointments.

Democrats may have a point when they claim Boehner’s lawsuit is more of a stunt than a policy initiative. It is doubtful that the courts will force the president’s hand when it comes to bypassing Congress on immigration by selective enforcement of laws or by the use of executive orders when the House and the Senate fail to pass the legislation he wants. Even if the case does go forward, the odds are it will not be resolved until after President Obama leaves office in January 2017.

But Boehner is right to stand up for the Constitution and a system of checks and balances and against Obama’s notions of an imperial presidency that increasingly seem aimed at allowing him to govern alone without Congress.

Thus, the Supreme Court’s willingness in National Labor Relations Board v. Noel Canning to put some limits on the president’s power to make recess appointments is an encouraging sign that the march to one-person rule can be checked if not altogether halted.

As our John Steele Gordon noted earlier, the practice of allowing recess appointments, including those for vacancies that arise while Congress is in session, is not authorized by the Constitution but has become routine in the last century. While properly ruling that President Obama’s appointments to the National Labor Relations Board were illegal, the majority of the court sought to curb what it believes to be an excessive use of the practice. The decision held that congressional breaks of less than 10 days could not be interpreted as being sufficient to justify the president invoking his recess appointment power. That’s reasonable, but as Justice Antonin Scalia noted in his concurring opinion, by also saying that such appointments would be legal even if they came in the middle of an existing session, the court has read the law in such a way as to still leave the president far too much leeway to abuse the Constitution. The Constitution only authorizes the executive to make such an appointment when a vacancy comes up during an actual recess, not every such opening including ones that date back to times when Congress is in session.

As Scalia writes:

The notion that the Constitution empowers the President to make unilateral appointments every time the Senate takes a half-hour lunch break is so absurd as to be self-refuting. But that, in the majority’s view, is what the text authorizes.

Though he concurred with the majority that the NLRB appointments were illegal, Scalia rightly points out that such unilateral actions by the president could only be approved under extraordinary circumstances. But no such circumstances applied to this case or, for that matter, just about any other recess appointment made by any president in recent decades.

It should be remembered that the concept of recess appointments stems from the political realities of government in pre-20th century America. With a few exceptions during periods of national emergency, prior to the Great Depression Congress met for only a few months every year. Recesses then were not matters of a few days or weeks but several months. Even when a special session of Congress was called, travel in the horse-and-buggy era meant that it was simply impossible for the legislative branch to assemble quickly. Vacancies that arose during this period could, if forced to wait for the Senate to exercise its right to advise and consent to appointments, mean the government simply couldn’t function.

The old schedule in which a newly elected Congress would not meet until the December of the following year and new presidents not be inaugurated until the middle of March is consigned to the dustbin of history. But so, too, should the practice of allowing the president to simply use brief breaks in what is, for all intents and purposes, a nearly continuous congressional session to make appointments that the Senate has already effectively rejected.

Under the ruling in today’s case, so long as either congressional body is in the hands of the party not in control of the White House, recess appointments may be impossible since pro forma sessions will prevent the president from arguing, as Obama did, that the legislature really is not meeting. But, as John Steel Gordon points out, the president will still have a loophole that would allow him to effectively prorogue Congress like an 17th century English monarch.

All this points out the necessity for those who care about the Constitution—be they Republicans or Democrats—to stand up against a lawless presidency intent on one-person rule. Though Democrats may think they will hold the White House for the foreseeable future, they must consider that three years from now they may be faced with a Republican president. That president will, like all of his or her predecessors including Obama, probably suddenly find themselves in love with the idea of an imperial presidency that they disdained when someone of the other party was in power.

If this trend is allowed to continue unchecked and Obama’s predecessors are allowed to build on his precedent, then there is no telling how long the Constitution, as we know it, will survive. Presidents who enforce only the laws they like and use executive orders to make laws or make appointments the Congress has already rejected are little different from kings and queens.

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Obama’s Free Lunch One-Man Government

As the new NBC News/Wall Street Journal poll shows, confidence in President Obama’s ability to handle the economy or put the country on the right path continues to decline. But with more than two and a half years to go until his successor is chosen, the president is barreling ahead and attempting to implement his liberal agenda without congressional assent or much public support. This is a dubious strategy for any president, let alone one whose approval ratings are at all-time lows with little prospect that they will recover as he heads inevitably to the lame duck portion of his second term.

But in order to counteract these trends, the president has chosen what, at least in theory, are the most populist measures available to him. Hence, the “give America a raise” theme he introduced in his State of the Union speech in January that sought to pin a comeback on an effort to implement a hefty increase in the minimum wage. The follow-up comes this week as he builds on that sweeping measure with another designed to play to the same populist sentiment: changing the regulations about overtime payments. The law requires workers to be paid overtime for the hours they labor above the normal confines of the workweek. But the same laws have always exempted supervisors and management employees from these regulations. Obama wants to change that to allow more of those who run the workplace to benefit along with their employees with extra pay for extra hours.

But the truth about this proposal is that it is just as much an example of liberal economic snake oil as the minimum wage. Promising people a free lunch is always popular. But someone has to pay for it, and those who will be most affected by the president’s fiat will not be rich or powerful. That the president is shoving this down the throat of the country in a manner that undermines constitutional checks and balances that provide for accountability shows how desperate the White House has become for cheap and ultimately ephemeral political wins.

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As the new NBC News/Wall Street Journal poll shows, confidence in President Obama’s ability to handle the economy or put the country on the right path continues to decline. But with more than two and a half years to go until his successor is chosen, the president is barreling ahead and attempting to implement his liberal agenda without congressional assent or much public support. This is a dubious strategy for any president, let alone one whose approval ratings are at all-time lows with little prospect that they will recover as he heads inevitably to the lame duck portion of his second term.

But in order to counteract these trends, the president has chosen what, at least in theory, are the most populist measures available to him. Hence, the “give America a raise” theme he introduced in his State of the Union speech in January that sought to pin a comeback on an effort to implement a hefty increase in the minimum wage. The follow-up comes this week as he builds on that sweeping measure with another designed to play to the same populist sentiment: changing the regulations about overtime payments. The law requires workers to be paid overtime for the hours they labor above the normal confines of the workweek. But the same laws have always exempted supervisors and management employees from these regulations. Obama wants to change that to allow more of those who run the workplace to benefit along with their employees with extra pay for extra hours.

But the truth about this proposal is that it is just as much an example of liberal economic snake oil as the minimum wage. Promising people a free lunch is always popular. But someone has to pay for it, and those who will be most affected by the president’s fiat will not be rich or powerful. That the president is shoving this down the throat of the country in a manner that undermines constitutional checks and balances that provide for accountability shows how desperate the White House has become for cheap and ultimately ephemeral political wins.

Like the hike in the minimum wage, it sounds perfectly fair and seems to address the supposed problem of income inequality. Why shouldn’t government force profitable companies to fork over more of their profits to their workers? Such measures appeal to resentment about big business and sympathy for those struggling to get by in a struggling economy.

But while implementing the new overtime rules may direct more cash to the pockets of some deserving workers, it will also hurt the very companies the country is counting on to help pull us out of the economic malaise that America is currently stuck in and reduce employment and growth.

As was the case with his blithe admonition for all Americans to get a raise, President Obama speaks as if money can be pulled out of the air to give to those who are hard-working or deserving without anyone other than the undeserving rich being made to pay for it. But this sort of magical economic thinking seems more appropriate to a banana republic than the economic engine of the free world.

The basic facts of life are that the increases in pay will have to be paid for by cuts in overall employment and wages. That will mean companies—large and small—will be forced to cut back on their workforces or to think twice about expanding their businesses. Once the applause for the free lunches being delivered by the president dies down, many of those who think they will benefit from his largesse will soon realize that they have become victims of basic rules of economics. And unlike the president, they will not be able to disregard or pretend that the force of Obama’s personality and good intentions or the wave of his imperial hand can override the math.

It is also remarkable that a president who claims to be clued into technology and cutting edge innovation would choose to ignore the economic models that show a better and more productive way to reward supervisors. The high-tech companies Obama loves to laud have always preferred rewarding those ascending the ladder of company responsibility with stock and other benefits that get them invested in their employers’ success. Merely raising wages is not only economically unsound, it is also less likely to incentivize workers and supervisors to work hard and get ahead. For a president who claims to champion the middle class, this measure is profoundly counterintuitive and unlikely to help anyone.

Last, by directing the Labor Department to change regulations in order to force through this change rather than asking Congress to do so, the president is again trying to see how far he can go in governing by executive order. The answer is that he can do a great deal on his own and the low approval ratings for Congress ought to enable him to get away with it without paying much of a political price. But if he thinks the American people are longing for him to govern as a benevolent despot, he is misreading the poll numbers. As unpopular as Congress may be, voters tend take an equally dim view of the president and still expect him to govern within the bounds of the Constitution.

Promising the voters free lunches via executive orders may garner the president cheers from his political base. But it won’t save the Democrats in a midterm election that is increasingly looking as if ObamaCare will produce another GOP landslide.

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Can SCOTUS Curb Obama’s Imperial Presidency?

In June 2012 the U.S. Supreme Court had a chance to derail a vast expansion of government power by the Obama administration. But the court wound up ruling that ObamaCare was constitutional, even if the rationale provided by Chief Justice John Roberts for his deciding vote contradicted the opinions of the four liberal justices who joined with him to form a 5-4 majority as well as the arguments of the government on behalf of the law. But next week the Court will have yet another opportunity to brush back the president’s fast and loose approach to the Constitution when it will hear arguments concerning the president’s use of executive orders.

The case concerns the Environmental Protection Agency’s attempt to use existing laws in order to give itself the power to regulate emissions from power plants even though the legislation in question says nothing about the federal government having such a right. But more than the proper interpretation of the Clean Air Act will be at stake when the justices vote. As important as efforts to restrain the EPA’s desire to act as a benevolent dictator may be, the crucial point here is whether the president can, as he boasted he would do in his State of the Union address last month, ignore Congress and govern by the use of executive orders. If, as was the case with the court’s perplexing ObamaCare decision, the president gets a pass to do as he likes, the consequences may affect a wide range of topics beyond the contentious debate about the White House’s obsession with climate change.

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In June 2012 the U.S. Supreme Court had a chance to derail a vast expansion of government power by the Obama administration. But the court wound up ruling that ObamaCare was constitutional, even if the rationale provided by Chief Justice John Roberts for his deciding vote contradicted the opinions of the four liberal justices who joined with him to form a 5-4 majority as well as the arguments of the government on behalf of the law. But next week the Court will have yet another opportunity to brush back the president’s fast and loose approach to the Constitution when it will hear arguments concerning the president’s use of executive orders.

The case concerns the Environmental Protection Agency’s attempt to use existing laws in order to give itself the power to regulate emissions from power plants even though the legislation in question says nothing about the federal government having such a right. But more than the proper interpretation of the Clean Air Act will be at stake when the justices vote. As important as efforts to restrain the EPA’s desire to act as a benevolent dictator may be, the crucial point here is whether the president can, as he boasted he would do in his State of the Union address last month, ignore Congress and govern by the use of executive orders. If, as was the case with the court’s perplexing ObamaCare decision, the president gets a pass to do as he likes, the consequences may affect a wide range of topics beyond the contentious debate about the White House’s obsession with climate change.

As I noted here yesterday, the president has already begun making good on his SOTU pledge by announcing his intention to issue executive orders regulating emissions from large trucks that will mandate large-scale and expensive changes in that industry. But the EPA’s decision to give itself the power to regulate existing power plants makes that power grab look like small change.

As the New York Times explains, the details of the case are complicated and confusing. Suffice it to say that although the courts have upheld the EPA’s right to regulate carbon emissions, in order to be able to acquire the right to license all power plants for such activity it has been forced to twist the text of the Clean Air Act into a pretzel:

The agency said its regulation of tailpipe emissions also required regulation of emissions from stationary sources under two permitting programs. The Clean Air Act says those programs cover all sources that can annually emit 100 or 250 tons of the relevant pollutant, a threshold that works tolerably well for conventional air pollutants like lead and carbon monoxide. But that threshold, applied to greenhouse gases, which are emitted in far greater amounts, would require the regulation of millions of sources of pollution.

All sides agree that requiring permits at the statutory thresholds would impose enormous burdens. “We’d be regulating mom-and-pop stores,” said Peter S. Glaser, a lawyer for the Washington Legal Foundation, which filed a supporting brief opposing the regulations.

Applying the law as written would increase the number of covered sources under one program from fewer than 280 to more than 80,000, reaching commercial and residential sources and subjecting them to expenses averaging almost $60,000, according to the appeals court. A second program would reach six million sources, subjecting them to expenses of more than $20,000 each. The cost of the programs would rise to $21 billion from $62 million.

What’s happened here is that by giving the EPA this power, the court has set in motion a process that could create a regulatory process that would cause massive economic dislocation. In order to avoid such an “absurd result,” the administration is therefore selectively enforcing the law. But, as with other such selective policies, what this means is that essentially the government has given itself the right to act as both legislature and executive to decide what the law means and how it can be enforced.

Given other court decisions that have given the EPA vast powers, it’s far from clear that even a setback for the administration will halt its campaign to overhaul the economy in order to comply with the president’s beliefs about climate change. But the impact of a precedent that would allow him to act as a benevolent dictator to force industries to obey his “green” marching orders means more than just the possible shutdown of hundreds of coal-firing power plants around the nation. It would mean a decisive shift in the balance of power between Congress and the executive branch that could shelve the notion of checks and balances that have enabled our constitutional republic to function.

Over the years both Congress and the courts have often acquiesced in a process whereby the executive branch has grown by leaps and bounds to assume the sort of influence and power that would have been unimaginable to the founders. But so long as the legislative and judicial branches retain the power to write and then interpret the laws, even the federal leviathan can be held in check. But if Justice Roberts and the Supreme Court allow President Obama to get away with not only selectively enforcing laws but also re-writing them on the fly, our system of government will have been fundamentally altered for the worse.

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Big Trucks, Obama, and the Rule of Law

In his State of the Union address, President Obama gave the country fair warning when he said he would try to rule by executive action if Congress did not follow his orders. He began to make good on that pledge yesterday by announcing that he would enact new fuel standards for heavy-duty trucks. Along with other new regulations that are being promulgated without benefit of the approval of Congress, the big truck rule is part of the president’s effort to show the world that he is working to save the planet from climate change.

But while energy efficiency and a potential reduction in the amount of oil consumption sound like ideas that everyone can get behind, the problem here is twofold. On the one hand, the imposition of the new regulations will almost certainly raise the costs of these vehicles as well as make them less safe. That’s no problem for large corporations that stand to benefit from “green” subsidies, but is a huge obstacle for small and mid-sized businesses and independent truckers. While Obama continues to insist his green policies are good for business, the new rules raise the prospect of more crony capitalism. Combined with other executive orders that may wind up shutting down hundreds of coal-fired power plants—a potential catastrophe for an industry that is still an important element of the nation’s power grid—Obama’s executive orders present a peril to an economy that is still slowed by a weak recovery.

But just as dangerous is the spectacle of a president exercising untrammeled power without having to worry about constitutional checks and balances. While liberals are delighted about the prospect of the president ignoring Congress and imposing regulations that the legislative branch has repeatedly rejected in order to advance their climate change agenda, the precedent is one that ought to scare both parties and build sympathy for the coming legal and legislative challenges to the president’s dictates.

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In his State of the Union address, President Obama gave the country fair warning when he said he would try to rule by executive action if Congress did not follow his orders. He began to make good on that pledge yesterday by announcing that he would enact new fuel standards for heavy-duty trucks. Along with other new regulations that are being promulgated without benefit of the approval of Congress, the big truck rule is part of the president’s effort to show the world that he is working to save the planet from climate change.

But while energy efficiency and a potential reduction in the amount of oil consumption sound like ideas that everyone can get behind, the problem here is twofold. On the one hand, the imposition of the new regulations will almost certainly raise the costs of these vehicles as well as make them less safe. That’s no problem for large corporations that stand to benefit from “green” subsidies, but is a huge obstacle for small and mid-sized businesses and independent truckers. While Obama continues to insist his green policies are good for business, the new rules raise the prospect of more crony capitalism. Combined with other executive orders that may wind up shutting down hundreds of coal-fired power plants—a potential catastrophe for an industry that is still an important element of the nation’s power grid—Obama’s executive orders present a peril to an economy that is still slowed by a weak recovery.

But just as dangerous is the spectacle of a president exercising untrammeled power without having to worry about constitutional checks and balances. While liberals are delighted about the prospect of the president ignoring Congress and imposing regulations that the legislative branch has repeatedly rejected in order to advance their climate change agenda, the precedent is one that ought to scare both parties and build sympathy for the coming legal and legislative challenges to the president’s dictates.

The ostensible goal of a series of executive orders that are in the works is to reduce carbon emissions and allow the administration to demonstrate to the world that the U.S. is attempting to live by the same rules it is asking developing countries to respect. But given the slim chances that nations like China and India will ever be willing to adopt measures that similarly restrict their growing economies, the gesture tells us more about the desire of liberals to re-engineer the economy than any concrete measure that will actually affect the global climate, even assuming that the science Obama cites to justify his policies is as settled as he claims.

As with every other such measure, big companies that stand to benefit from some aspect of the president’s rules can always be found to back up the administration. But the nexus of crony capitalism and green activism is one that is highly vulnerable to manipulation and possible corruption. The new environmental regulations the president is imposing on the economy without congressional approval are reminiscent of the same desire to pick winners and losers that have led to past problems such as the Solyndra scandals and other green boondoggles.

The president is on firm legal ground when it comes to measures that can be justified as rules on carbon because of the courts granting the Environmental Protection Agency the power to regulate emissions. But the vast scale of what is being contemplated on coal as well as trucks grants the executive branch the kind of power to micromanage the economy that recalls the first days of Franklin Roosevelt’s New Deal when the courts let him run roughshod over the nation.

But the aggressive push for climate change is about more than Obama’s desire to shape his legacy as the president who would, as he said in his megalomaniacal 2008 boast, slow “the rise of the oceans” and “heal” the planet. What we are now witnessing is an attempt to create an imperial presidency that seeks to govern without Congress at home as opposed to the traditional model in which commanders in chief conduct wars and foreign policy without being held accountable.

It is not enough to claim, as Obama does, that he is working on behalf of a righteous cause and that he is tired of waiting for Congress to do what he believes is the right thing. In a democracy, the people and their elected representatives rule. The president can lead but he must respect the rule of law. That is a principle that this administration appears to be willing to discard along with old trucks and coal. But even if you share Obama’s fears about the climate, his desire to govern as a benevolent despot is one that should concern liberals as well as conservatives. Though Democrats may be under the impression that they will hold the White House forever, the next time a Republican is sitting in the Oval Office, they may recall their enthusiasm for Obama’s unconstitutional behavior with regret.

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Kings, Presidents, and Barack Obama

From the first president to our current chief executive, Americans have always chafed against the growing power of the presidency. Having come into existence in protest against the unchecked power of a king and an unaccountable parliament, Americans have always been particularly sensitive to the notion that the executive branch should take on the trappings or the imperial grasp of monarchy. And yet the history of our republic is told in no small measure by the way in which our presidents have gradually accumulated more power. For the most part that involved their conduct of military and foreign policy, the aspects of government that the Constitution made the direct responsibility of the president.

Invariably the exercise of that power, whether it involved George Washington’s decision to negotiate a treaty with Great Britain or Abraham Lincoln’s suspension of habeas corpus and the conduct of the war against southern rebels, caused critics to accuse these presidents of acting like monarchs. However, such accusations were heard when some presidents acted on domestic issues as well. Andrew Jackson’s “war” on the Second Bank of the United States prompted his Whig opponents to call him a king. In the 20th century the executive branch grew into the modern presidency, and talk of presidents as kings changed to one of an imperial presidency in which the occupant of the White House seemed to have usurped the congressional prerogative to declare war. But as we celebrate President’s Day, Barack Obama has turned that traditional debate about the presidency on its head. In doing so, he has resurrected centuries-old worries about an attack on the rule of law by an out-of-control president.

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From the first president to our current chief executive, Americans have always chafed against the growing power of the presidency. Having come into existence in protest against the unchecked power of a king and an unaccountable parliament, Americans have always been particularly sensitive to the notion that the executive branch should take on the trappings or the imperial grasp of monarchy. And yet the history of our republic is told in no small measure by the way in which our presidents have gradually accumulated more power. For the most part that involved their conduct of military and foreign policy, the aspects of government that the Constitution made the direct responsibility of the president.

Invariably the exercise of that power, whether it involved George Washington’s decision to negotiate a treaty with Great Britain or Abraham Lincoln’s suspension of habeas corpus and the conduct of the war against southern rebels, caused critics to accuse these presidents of acting like monarchs. However, such accusations were heard when some presidents acted on domestic issues as well. Andrew Jackson’s “war” on the Second Bank of the United States prompted his Whig opponents to call him a king. In the 20th century the executive branch grew into the modern presidency, and talk of presidents as kings changed to one of an imperial presidency in which the occupant of the White House seemed to have usurped the congressional prerogative to declare war. But as we celebrate President’s Day, Barack Obama has turned that traditional debate about the presidency on its head. In doing so, he has resurrected centuries-old worries about an attack on the rule of law by an out-of-control president.

Unlike many of his predecessors, President Obama lacked the confidence and the support he needed to conduct military operations without prior congressional approval. The spectacle of the president asking Congress to authorize a strike on Syria’s chemical-weapons capacity last summer and then withdrawing that request once he realized he would lose illustrated not only his shaky personal standing but also an abdication on his part of the power to react to international threats that his predecessors had acquired. Yet even as Obama has become weaker in the category of foreign and defense policy, he has sought to expand his power elsewhere. The president’s decisions to selectively enforce laws, whether it be immigration regulations or the implementation of his own signature health-care legislation, has created a new kind of imperial presidency. The question now is no longer about the use of clear constitutional authority as commander in chief to conduct wars without much congressional or judicial oversight but about the way this president seems to prefer to govern at home without respect for the rule of law. This is creating a new kind of constitutional crisis that should trouble Americans even more than their past concerns about Mr. Obama’s predecessors.

Barack Obama is far from the first president to come to the conclusion that he should be able to govern on his own. All presidents have at times sought to ignore both the legislative and judicial branches. But the president’s decision to treat ObamaCare as a law that can be enacted according to his whims or political advantage is an extraordinary abuse of power. With more than two dozen delays of various aspects of the law over the past year, the administration has attempted a piecemeal implementation that will frontload its benefits and postpones much of the pain of the law’s provisions for both employers and the economy. While this has been defended as a response to the business community’s problems, that argument falls flat when one realizes that the delays are not so much about rescuing the economy from a massive federal power grab as they are merely putting off the disaster until after first the 2012 presidential election and now the 2014 midterms.

Put in the context of the president’s declaration about the use of executive orders in the State of the Union address, this creates the impression that there is a White House that appears to govern on its own without respect to either the Constitution or the will of the American people. By saying that he will govern wherever possible in the final three years of his term by executive orders rather than wait for Congress to pass the laws he wants, the president is signaling the beginning of a new constitutional order that puts past disputes about the use of force in a different perspective. If his predecessors often overstepped their authority or created new powers out of thin air it could be justified as flowing from their constitutional authority to protect and defend the United States from foreign enemies. But by declaring himself a one-man legislature and executive, this president presents a new threat to the rule of law that can’t be rationalized in that manner.

The American republic and its Constitution have proved that they can survive all manner of threats and political crises. That will also be true of Obama’s selective approach to being the country’s chief legal officer. But just as his predecessors have used past power grabs to justify their own expanding authority, so, too, will the presidents who follow Barack Obama into the Oval Office build on his abuses. That should cause all Americans, whether they are liberal or conservative, Democrat or Republican, to fear for the future of the rule of law in this country. Though talk of presidential monarchs is as old as the United States, in this case, the worries may be justified.

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