Commentary Magazine


Topic: rule of law

Issue is the Constitution, Not the Shutdown

With time running out to avoid defunding the Department of Homeland Security, almost all of the focus of news coverage of the story has been on the contentious battle between Republicans who are in favor and those opposed to a stand that will lead to a shutdown. There is good reason for this, especially as House Speaker John Boehner and Senate Majority Leader Mitch McConnell desperately to try to maneuver to keep their previous promises to avoid another politically damaging government shutdown. But though it’s hard to take our eyes off of the spectacle of impending civil war among Republicans, the real author of this week’s drama doesn’t work on Capitol Hill. President Obama was in Miami last night for a televised infomercial on MSNBC in which he tried to take a victory lap for having started the fight that is causing the shutdown. But despite his efforts to place himself on what he thinks is the right side of history and the slavish applause of the liberal mainstream media for this stand, the real issue today remains Obama’s blatant disregard for the Constitution, not whether or not Boehner and McConnell can find a way out of the corner into which Obama has forced them.

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With time running out to avoid defunding the Department of Homeland Security, almost all of the focus of news coverage of the story has been on the contentious battle between Republicans who are in favor and those opposed to a stand that will lead to a shutdown. There is good reason for this, especially as House Speaker John Boehner and Senate Majority Leader Mitch McConnell desperately to try to maneuver to keep their previous promises to avoid another politically damaging government shutdown. But though it’s hard to take our eyes off of the spectacle of impending civil war among Republicans, the real author of this week’s drama doesn’t work on Capitol Hill. President Obama was in Miami last night for a televised infomercial on MSNBC in which he tried to take a victory lap for having started the fight that is causing the shutdown. But despite his efforts to place himself on what he thinks is the right side of history and the slavish applause of the liberal mainstream media for this stand, the real issue today remains Obama’s blatant disregard for the Constitution, not whether or not Boehner and McConnell can find a way out of the corner into which Obama has forced them.

While many conservatives continue to call for the Republican leadership to stand their ground against the Democrats, both Boehner and McConnell understand that this is a losing fight. Even if, as many on the right have aptly pointed out, the DHS shutdown is more symbolic than actual since most of its employees will continue to show up for work, that symbolism is the last thing the GOP needs right now.

At a time when concern over terrorism is on the rise and the country is coming to grips with the president’s inept and halfhearted approach to fighting ISIS and its allies, any defunding measure aimed at any part of the country’s defenses is political poison. Unlike the sequester that continued in place for many months with few citizens noticing, a DHS shutdown is a nonstarter. That’s especially true since it will enable the president to change the topic from his own failures and put the spotlight on a fractious and dysfunctional Congress where both chambers have Republican majorities.

But as bad an idea as a shutdown might be, anyone tuning in to see Telemundo and MSNBC host Jose Diaz-Balart feeding questions to Obama in order to press him to even greater commitments to amnesty policies must realize that the drama in Congress is something of a diversion from the real problem: a president that believes he can legislate on his own without benefit of Congress.

Immigration isn’t the only issue on which Obama’s imperial presidency is flexing its muscles against the Constitution. The Iran nuclear talks seem to be heading toward an American agreement to a deal that would make the Islamist regime a threshold nuclear power now and give it a green light to create a bomb in at least ten years. But the president has no plans to present the most important foreign treaty the U.S. has signed in this generation to the Senate for approval, as the Constitution requires. By not calling it a treaty, he intends to circumvent the law so as to avoid the scrutiny and the judgment of the legislature.

But it is on immigration which the president has made the boldest move toward one-man rule in decades. By signing executive orders that amount to amnesty for up to five million illegal aliens, the president has with a stroke of the pen asserted a power that he previously had said 22 times was not his to exercise. Though a lawsuit brought by 26 states against this measure has had an initial success in a Texas federal court, Obama may be right to feel confident that eventually the courts will back him up on technicalities.

But by issuing orders to the relevant departments to stop enforcing the law mandating the deportation of illegals, the president is actually setting a dangerous precedent. A president who feels entitled to state what laws may or may not be enforced is one untrammeled by the normal constitutional constraints at the heart of American democracy.

While playing to a crowd of immigrants, the president says that the changing demography of the nation mandates a solution to the dilemma of up to 12 million illegals already in the country. But whether you think that Congress is wrong to fail to act on a plan to give them a path to citizenship or not, the notion that laws can still be annulled by presidential fiat is an untenable concept that would be swiftly condemned by Obama’s press cheering sections if it were a case of a Republican undoing some liberal project created by a predecessor.

More to the point, the continuing stream of illegals over the border, lured by promises of amnesty and confident that requests for asylum, whether justified or not, will keep them out of jail, will ensure that Obama’s approach will not solve the country’s problem at the border.

Obama may be right to think he’s won this news cycle as the Republicans seek a path, whether temporary or not, to retreat from their pledges to use the power of the purse to stop the executive orders from being implemented. But more surges of illegals in the future could change the political balance of power on this issue in ways that Democrats confident of Hispanic support don’t currently envision. The only enduring values here are the defense of the Constitution and the rule of law that Obama has trashed, not amnesty for illegals. Whatever happens this week in Washington, if Republicans are faithful to that principle, they won’t regret it in the long run.

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Want to Reverse Obama’s Amnesty Orders? Elect a GOP President.

Yesterday, the House of Representatives acted to defend the Constitution. It passed a bill funding the Homeland Security Department that included provisions that will ensure that the government will enforce immigration laws and prevent it from carrying out President Obama’s executive orders granting amnesty to millions of illegal immigrants. House conservatives can now say they have voted to protect the rule of law against a president determined to act on his own authority in contravention to his constitutional obligations. But if this bill has little chance of surviving a Democratic filibuster in the Senate or of obtaining a veto-proof majority in both Houses if it should make it to the president’s desk, the question remains what exactly can Republicans do to restrain the president’s lawless behavior? The answer for both House Speaker John Boehner and his more conservative critics is: not much.

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Yesterday, the House of Representatives acted to defend the Constitution. It passed a bill funding the Homeland Security Department that included provisions that will ensure that the government will enforce immigration laws and prevent it from carrying out President Obama’s executive orders granting amnesty to millions of illegal immigrants. House conservatives can now say they have voted to protect the rule of law against a president determined to act on his own authority in contravention to his constitutional obligations. But if this bill has little chance of surviving a Democratic filibuster in the Senate or of obtaining a veto-proof majority in both Houses if it should make it to the president’s desk, the question remains what exactly can Republicans do to restrain the president’s lawless behavior? The answer for both House Speaker John Boehner and his more conservative critics is: not much.

That’s not the answer Tea Party activists and other members of the GOP base want to hear. The idea that the ability of Boehner and other Republican congressional leaders to restrain the president is limited, even now that the Senate is in their hands, seem inexplicable to many who believe that the only thing lacking in the Republican caucus is the will to take on Obama. But the more you map out the possible scenarios facing Republicans seeking a legislative fix to the president’s executive orders, not even a shutdown of DHS will halt the amnesty project. If that is true, and unfortunately it is, then at some point the GOP will have to concede at least temporary defeat and move on to other issues even if that will leave at least part of the base damning them as RINO weaklings.

The congressional math on the immigration tangle isn’t hard to figure out. Though Senate Majority Leader Mitch McConnell would probably like to pass the House bill, he may not have the votes to prevent a filibuster by Democrats seeking to defend the president’s prerogatives even if he could count on all 54 Republicans to vote with him, which he can’t. Even if he could get cloture and pass the bill, neither McConnell nor Boehner can muster the supermajorities needed to override such a veto. At that point, the only alternatives involve actions that will lead the GOP into a government shutdown scenario that will only hurt them and help Obama. Even worse, since the agencies that will administer the president’s amnesty plans run on fees collected from the illegals and other immigrants, even that wouldn’t stop the orders from being carried out.

This is frustrating for Republicans and not just because it will leave some conservatives wondering what the point was of electing GOP majorities if they can’t get their way on an issue that hinges on protecting the regular constitutional order by which the legislature passes laws that the executive branch must then enforce.

The strength of the Republican position is that it is defensible regardless of whether you agree or disagree with the president’s policy goals. For a president to simply order a government agency to stop enforcing legally binding laws sets a dangerous precedent. So, too, does the spectacle of a president unilaterally declaring his right to make as well as enforce laws simply because Congress didn’t do as he asked.

But even if you think the broken immigration system must be reformed and a solution found for the 12 million illegals already here and who are unlikely to be all deported, the prospect of Homeland Security simply stopping enforcement is dismaying. Though many of those threatened with deportation are sympathetic, such as the illegals profiled today by the New York Times, the idea that laws can be ignored with impunity, either by immigrants or the president, undermines the notion that we are a nation of laws not men.

This is a battle worth fighting. But it must be acknowledged that picking fights, even righteous ones, that you can’t win isn’t smart.

To those who ask what was the point of electing a Republican Senate if Obama is to get his way, the only answer is that if you are going to eventually reverse the president’s orders, it will have to include electing a president as well as GOP congressional majorities. Only a Republican president, elected in part by the outrage many Americans will feel about their laws being trashed, can roll back the damage Obama is doing to the fabric of our democracy.

The groundwork for that reversal of fortune will also have to involve a Republican Congress behaving sensibly and showing that the party can govern constructively while seeking wherever possible to push back against Obama’s imperial instincts. That will not satisfy those who declare that the republic won’t survive another two years of the Obama presidency. But policy based on apocalyptic predictions is neither a sober party platform nor a strategy for victory. Republicans have made their statement about immigration. Once their gambit fails, like it or not, they will have to move on and prepare the groundwork for the defeat of Hillary Clinton.

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Obama’s Executive Memoranda Highlights Constitutional Crisis

When conservatives protested President Obama’s attempt to go around the Constitution and rule by executive orders rather than with the consent of Congress, his defenders had a ready answer. While they insisted that Obama’s fiat granting amnesty to five million illegal immigrants did not exceed his authority, they also countered by saying that the president had actually issued far fewer such executive orders than that of President Bush. But, as USA Today noted last week, focusing only on executive orders while ignoring the far more numerous executive memoranda issued by this administration that have the same effect as law, the press and the public have vastly underestimated the extent of how far he has stretched the boundaries of executive power. If anything, this president’s effort to create a one-man government may have gone farther than we thought.

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When conservatives protested President Obama’s attempt to go around the Constitution and rule by executive orders rather than with the consent of Congress, his defenders had a ready answer. While they insisted that Obama’s fiat granting amnesty to five million illegal immigrants did not exceed his authority, they also countered by saying that the president had actually issued far fewer such executive orders than that of President Bush. But, as USA Today noted last week, focusing only on executive orders while ignoring the far more numerous executive memoranda issued by this administration that have the same effect as law, the press and the public have vastly underestimated the extent of how far he has stretched the boundaries of executive power. If anything, this president’s effort to create a one-man government may have gone farther than we thought.

As of last week, Obama had issued 198 executive memoranda alongside 195 executive orders. That’s 33 percent more than Bush issued in his full eight years in office and 45 percent more than Bill Clinton. That blows a huge hole in the defense of Obama’s use of executive orders. Seen in this light, rather, as he and his media cheering section have contended, Obama has far exceeded the resort to unilateral measures of not only his immediate predecessor, but every one before that as well.

As USA Today explains, like the orders, memorandums have the force of law and don’t require the consent of Congress. Obama’s memoranda have run the gamut from the creation of new kinds of retirement savings plans, having the Labor Department require federal contractors to supply specific information to the government, forcing borrowers to cap student loan payments, three post-Sandy Hook shooting gun control measures as well as two memos that complimented his immigration amnesty orders.

That last point is crucial because the implementation of amnesty is largely being carried out by executive memorandums rather than orders. They also have the advantage of not being numbered in the Federal Register, as are executive orders. That makes it harder for Congress, the press and the public to keep track of them.

But lest you think it is a mistake to treat the memorandums as being as potent as the far more publicized orders, don’t rely on the authority of USA Today or Commentary. Ask one of President Obama’s appointees to the U.S. Supreme Court. In 1999, Justice Elena Kagan, who served as Associate White House Counsel in the Clinton White House, wrote in the Harvard Law Review that legal scholars made a mistake in focusing too much on executive orders while ignoring the memoranda.

Kagan said Clinton considered memoranda “a central part of his governing strategy,” using them to spur agencies to write regulations restricting tobacco advertising to children, allowing unemployment insurance for paid family leave and requiring agencies to collect racial profiling data.

“The memoranda became, ever increasingly over the course of eight years, Clinton’s primary means, self-consciously undertaken, both of setting an administrative agenda that reflected and advanced his policy and political preferences and of ensuring the execution of this program,” Kagan wrote.

When you consider how many more memoranda Obama has issued than Clinton, it makes Justice Kagan’s insight into how they can be used as a governing strategy even more important.

In practice, the memos are clearly executive orders by another name with no real difference. Even before Barack Obama had become president, they constituted a legal loophole that helped make an already increasingly imperial presidency even more powerful. But under Obama that problem has grown far worse.

The immigration overreach rightly scandalized many Americans not only because of the scope of the orders that were issued but because they represented an end run around the checks and balances that were put into the Constitution by the founders specially to avoid one man rule. One didn’t need to disagree with the president’s actions to understand that the process he was using represented a dangerous departure from the rule of law. But what few seem to understand is that the orders are only the tip of the imperial iceberg when it comes to President Obama’s effort to govern without having to wait for Congress to adopt the laws he wants them to pass. The outrage over the immigration orders is no tempest in a teapot. The president’s increased use of executive memoranda as well as orders ought to highlight a problem that might properly be termed a constitutional crisis rather than a mere partisan spat.

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ObamaCare: Live by a Typo. Die By It.

New York Times columnist Paul Krugman thinks it’s outrageous. The U.S. Supreme Court’s decision to hear King v. Burwell, the case in which the state of Oklahoma, joined by numerous other groups, challenged the constitutionality of the government’s interpretation of the Affordable Care Act, puts, as our John Steele Gordon noted yesterday, the entire future of the ObamaCare apparatus in jeopardy. Krugman’s point in his latest column is that the case rests on what he refers to as a “typo”—the fact that the text of the ACA said that the federal subsidies that prop up the scheme could only go to state-run exchanges and not to federal marketplaces set up to accommodate those who live in states that did not create such exchanges. But for those who remember the technicality invented by Chief Justice John Roberts to ensure that ObamaCare survived a much more substantive constitutional challenge, the answer is clear: live by a typo, die by it as well.

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New York Times columnist Paul Krugman thinks it’s outrageous. The U.S. Supreme Court’s decision to hear King v. Burwell, the case in which the state of Oklahoma, joined by numerous other groups, challenged the constitutionality of the government’s interpretation of the Affordable Care Act, puts, as our John Steele Gordon noted yesterday, the entire future of the ObamaCare apparatus in jeopardy. Krugman’s point in his latest column is that the case rests on what he refers to as a “typo”—the fact that the text of the ACA said that the federal subsidies that prop up the scheme could only go to state-run exchanges and not to federal marketplaces set up to accommodate those who live in states that did not create such exchanges. But for those who remember the technicality invented by Chief Justice John Roberts to ensure that ObamaCare survived a much more substantive constitutional challenge, the answer is clear: live by a typo, die by it as well.

Let’s specify up front that Krugman isn’t entirely wrong that the substance of this case rests entirely on a technicality. As I noted in October when a federal court in Oklahoma ruled against the ACA on this issue, the anomaly by which the law granted subsidies only for state exchanges was not necessarily intended by those who drafted the law although there was some dispute about funding for the subsidies. But the Democratic majorities that crammed this legal monstrosity through both houses of Congress were not that interested in its content. As then House Speaker Nancy Pelosi famously said, the law had to be passed before anyone would know what was in it.

The idea that it could be scuttled by a drafting error strikes Krugman as a terrible injustice that would not be permitted if sensible people were staffing the judiciary. He likens the prospect of ObamaCare’s destruction on such a seemingly minor point to the discovery of a mistake made in the filing of the deed of his parent’s home which might have left his mother’s garden outside of their property. But there are two points that serve to render his complaint both hypocritical as well as insubstantial.

The first is that the ACA was judged to be constitutional on a technicality that was far more bogus than the one about state and federal exchange subsidies. In 2012, the Supreme Court ruled in favor of the constitutionality of the law on a narrow 5-4 vote. But the deciding fifth vote cast by Chief Justice Roberts was based on his belief that the entire thing could be construed as a tax and that this allowed the federal government to act in this manner. The other eight justices had divided evenly on the question that both the plaintiffs and those defending the government had thought was at issue: whether ObamaCare was an unconstitutional breach of the Commerce Clause that would have unlawfully forced citizens to engage in commerce. Roberts agreed with the four other conservative judges that the challenge to its constitutionality on this point was valid but concocted the tax argument in order to keep the high court out of an issue that he appears to believe should only be decided by Congress and the voters.

At the time, conservatives howled at the absurd nature of Roberts’s argument that allowed a blatantly unconstitutional piece of legislation to survive. In response, liberals merely crowed at their victory and reminded their opponents to respect the rule of law whether they liked the outcome or not.

Two years later, it appears the shoe is on the other foot and all of a sudden liberals like Krugman no longer think it’s right for laws to be narrowly decided in an arbitrary manner that hangs on legal technicalities or bizarre interpretations of the law. But there is more here at play than turnabout being fair play.

Krugman falsely argues that the law is working well, something that is given the lie by the fact that much of its substance has been delayed until next year so as to give Democrats a better chance in the midterms as well as its rollout. Contrary to the president’s false promises, Americans were not allowed to keep their insurance or their doctors, if they liked. The increases that many will suffer next year, as well as the potentially devastating impact on employment, once the individual mandate begins to be enforced also destroys his premise. But even if we accept that some will lose benefits they have been given under the law, that shouldn’t motivate the court to ignore the contradiction in the text.

At the heart of the current case is a question of what it means to pass a law. Laws are not merely amorphous notions but actual documents that must be drafted carefully lest some odd anomaly in their language allow governments to exploit the citizens or individuals to profit unfairly. If the text doesn’t actually matter, then the government may interpret them in any way it likes to the detriment of the rights of all Americans.

Seen in that light, Krugman’s railing at the “typo” and the “corruption” involved in this case that should—if Roberts doesn’t invent some even more absurd rationale to save ObamaCare again—destroy the president’s principal legislative achievement doesn’t seem so reasonable. At stake here is not just the future of health care or a president’s legacy, but also the rule of law.

Without the rule of law, there is no individual liberty or democracy. It is on that ground, if nothing else, that the Supreme Court should rule against the government. If it doesn’t, the corruption will not so much be liberal hypocrisy but their agenda that seeks to trash this basic principle of accountability.

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Mr. Holder, You’re No Bobby Kennedy

A few days ago President Obama summoned a press conference to announce the resignation of Attorney General Eric Holder. For all the misty-eyed platitudes, it was hard to believe that the president was speaking about the only sitting Cabinet member in U.S. history to be held in contempt of Congress. In fact, only three days ago a federal court dealt the Department of Justice a significant blow, ordering Mr. Holder to hand over a list of the documents it has withheld from the congressional investigation into Operation Fast and Furious. None of this stopped the president from praising Holder’s “deep and abiding fidelity to one of our most cherished ideals as a people, and that is equal justice under the law.” To the contrary, Holder leaves behind a dubious legacy of selective law enforcement, careless public pronouncements, and partisan abuses inconsistent with the principle of equal justice under the law.

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A few days ago President Obama summoned a press conference to announce the resignation of Attorney General Eric Holder. For all the misty-eyed platitudes, it was hard to believe that the president was speaking about the only sitting Cabinet member in U.S. history to be held in contempt of Congress. In fact, only three days ago a federal court dealt the Department of Justice a significant blow, ordering Mr. Holder to hand over a list of the documents it has withheld from the congressional investigation into Operation Fast and Furious. None of this stopped the president from praising Holder’s “deep and abiding fidelity to one of our most cherished ideals as a people, and that is equal justice under the law.” To the contrary, Holder leaves behind a dubious legacy of selective law enforcement, careless public pronouncements, and partisan abuses inconsistent with the principle of equal justice under the law.

The attorney general is what President Obama correctly called “America’s lawyer, the people’s lawyer.” His principal functions are to uphold the Constitution of the United States and enforce the laws duly enacted by the elected representatives of the people. At least, that’s his job in theory. In practice, Holder has behaved more like the President’s hired gun than the people’s lawyer. This was underscored by a slip of the tongue as Holder spoke yesterday: “Over the last six years,” he remarked, “our administration”–and then, correcting himself–“your administration, has made historic gains in realizing the principles of the founding documents[.]” Honest mistake or Freudian slip, there was truth in Holder’s faux pas: this attorney general has faithfully pushed the president’s political agenda, even at the expense of the rule of law.

In his six years as attorney general, Holder has become more notable for not enforcing federal law than for enforcing it–and this should be troubling to all Americans. If we are truly to live in a government of laws and not of men, all people must be afforded equal treatment under generally applicable laws. The attorney general is in a singular position to ensure this through his prosecutorial and enforcement powers. But, as I’ve discussed elsewhere, when the president has been unable to reform existing laws through the political process, Holder has effectively nullified them by refusing to defend or enforce the statutes in question. This was the case when the DOJ refused to defend the Defense of Marriage Act from judicial challenge, and it remains the case now that the DOJ refuses to enforce provisions of federal immigration and drug-control law.

All this suggests a baldfaced contempt for the role of Congress in the lawmaking process and a deep distrust of the judiciary as the proper arbiter of constitutional disputes. Under Holder’s leadership, the Department of Justice provided the executive with a way of bypassing constitutionally ordained processes, creating law and policy by executive fiat. And this subverts the very spirit of the Constitution that Holder is sworn to defend, replacing the majesty of the law with a kind of leering cynicism for political and judicial processes.

This cynicism made it all the more jarring when both Obama and Holder attempted to don the mantle of Robert F. Kennedy through repeated appeals to his legacy in yesterday’s statements. In May 1961, only a few months after the University of Georgia campus exploded with violence in response to a court’s desegregation order, Bobby Kennedy spoke to the university’s law students about Brown v. Board of Education. “I happen to believe that the 1954 decision was right,” he said. “But my belief does not matter. It is now the law. Some of you may believe the decision was wrong. That does not matter. It is the law. And we both respect the law. By facing this problem honorably you have shown to all the world that we Americans are moving forward together, solving this problem under the rule of law.”

If the rule of law is to mean anything in this nation, it must command the respect of those sworn to uphold and defend it. Attorney General Holder’s successor, whoever that may be, would do well to remember that.

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The Walker Smear and the Rule of Law

Back in June, Wisconsin Governor Scott Walker’s Democratic and union opponents took a flyer on an attempt to smear the 2016 presidential hopeful as a lawbreaker. The story quickly collapsed once it became clear that Walker was not actually the object of any criminal probe regarding his state’s arcane campaign-finance laws. But now the same media outlets that trumpeted the original misleading story and then buried the subsequent news that discredited it are back at it again trying to revive the non-scandal with new articles. But the problem with this round of accusations is the same as with the first one. Walker doesn’t appear to have violated any laws.

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Back in June, Wisconsin Governor Scott Walker’s Democratic and union opponents took a flyer on an attempt to smear the 2016 presidential hopeful as a lawbreaker. The story quickly collapsed once it became clear that Walker was not actually the object of any criminal probe regarding his state’s arcane campaign-finance laws. But now the same media outlets that trumpeted the original misleading story and then buried the subsequent news that discredited it are back at it again trying to revive the non-scandal with new articles. But the problem with this round of accusations is the same as with the first one. Walker doesn’t appear to have violated any laws.

The original accusation that Walker had illegally coordinated independent campaign contributions during the 2012 attempt to recall him from office was big news back in June. Publications such as the New York Times and Politico treated the release of some documents from a convoluted litigation stemming from campaign-finance law investigations as damning evidence of Walker crossing the line between legal and illegal activity. The allegations were big political news for a day or two, but were just as quickly forgotten when a closer reading of the facts made it clear that a judge had already halted the investigation as a politicized fishing expedition before the stories were even published. The embarrassment of those who had treated this as a sign that Walker was doomed was compounded a week later when the lawyer for the prosecutors that had tried to pursue the investigation admitted that even if it were allowed to complete its work, Governor Walker was not actually the object of any criminal probe despite claims to the contrary from the press.

So what prompted the news stories that appeared in the New York Times and Politico on Friday? The headlines of the pieces make it seem as if newly released emails prove that Walker is in trouble. But again, once you take the trouble to read the stories, the notion that this is a scandal that has, as the Times helpfully insinuates, “clouded the White House prospects of Mr. Walker” falls flat again.

The emails that were released by the prosecutors talk a lot about efforts to raise money to help Walker, but there is no actual evidence that he broke any laws. Just tidbits from his staff to the governor discussing the efforts to raise money to combat the massive influx of union and liberal money into the state that was aimed at reversing the verdict of the voters in 2010 when Walker and a Republican majority in the state legislature were elected on a platform to reform the state’s finances. The only thing the documents prove is that Walker might have encouraged support for those seeking to oppose the efforts of his opponents. That this might have been so is neither shocking nor evidence of criminal behavior. It is exactly what every other politician in the country does in order to navigate the forest of campaign finance laws that have done nothing to make the system more transparent but have provided plenty of work for lawyers. It is little wonder that a federal judge shut down the investigation as an unconstitutional attempt to suppress the free speech rights of some of the groups involved, such as the Wisconsin Club for Growth.

But what is going on here is bigger than the political nastiness inspired by the 2011 effort by union thugs and their Democratic supporters to stop Walker and the Wisconsin legislature from changing laws that allowed state workers to hold the taxpayers hostage. What those behind this effort, ably assisted by the liberal media, are trying to do is no different from what happened earlier this month in Texas when Democrats managed to indict Governor Rick Perry for using his veto power to force the resignation of a prosecutor who had disgraced herself by being caught driving while drunk. In both Wisconsin and Texas, liberals have decided that the only way to derail politicians they can’t beat at the polls is to try and trump up legal cases against them. While no one expects Perry to ever serve a day in jail on such absurd charges and Walker isn’t even in personal legal peril, the point here is not so much to imprison these Republicans but to discredit them. The assumption is that legal trouble of any kind—even when they are the result of investigations with obvious political motives—will be enough to damage them for 2016. In Walker’s case, those behind these cases as well as their media collaborators are also hoping that their smears will make it easier to beat him in what shapes up to be a tough reelection race this fall in a battleground state.

The majority of voters are too smart to be fooled by these smears, and it’s likely that the efforts to take them down by such underhanded means will actually boost the popularity of both Perry and Walker among Republicans. But even if neither man is actually hurt by these cases, both liberals and conservatives should be worried about this political trend.

One of the hallmarks of dictatorships is the use of law to punish political opponents. The thing that has always separated the United States from banana republics and vicious authoritarian regimes such as Vladimir Putin’s Russia is the inability of either political leaders or parties to imprison their rivals. But what we are witnessing in Texas and Wisconsin is the breakdown of the rule of law that should protect us against the kind of savage reprisals against those who would challenge Putin that we see in contemporary Russia.

As the trial of Bob MacDonnell, the former Republican governor of Virginia and the ongoing ethics probe of New York’s Democratic Governor Andrew Cuomo shows, there are enough real scandals involving abuses of power or corruption to occupy the press and the public. But what is so awful about the attempts to take down Perry and Walker is the willingness of the political left to prioritize their naked lust for power over the rule of law. That a partisan press should seek to aid these efforts to play politics by other means rather than expose them is a disgrace. This is a trend that Americans should deplore no matter what they think about those governors or their ideology.

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Compassion and the Rule of Law

The surge of illegal aliens–and in particular unaccompanied minors from Central America–across the border in Texas has started a debate in which more than immigration reform seems to be stake. While most conservatives are decrying the situation as the result of President Obama’s mistakes, some liberals are focusing on what they believe is the lack of compassion for the children that is being forgotten amid the politics. But as the plight of these desperate kids becomes publicized, Americans are being asked to make a choice between their charitable instincts and the rule of law.

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The surge of illegal aliens–and in particular unaccompanied minors from Central America–across the border in Texas has started a debate in which more than immigration reform seems to be stake. While most conservatives are decrying the situation as the result of President Obama’s mistakes, some liberals are focusing on what they believe is the lack of compassion for the children that is being forgotten amid the politics. But as the plight of these desperate kids becomes publicized, Americans are being asked to make a choice between their charitable instincts and the rule of law.

That’s the conceit of a good deal of the coverage of the reaction to the border surge in which demonstrations by Americans angry about the arrival of busloads of illegals are seen as proof of the intolerance and anger at the heart of resistance to immigration reform. The deplorable condition of many of these children and the hardships and violence they faced on their way to the United States all demand the sympathy of any decent person. Once in this country, they deserve humanitarian aid. Republicans who have expressed reluctance to allocate funds to deal with the crisis may be right not to trust President Obama to use the $3.7 billion he has requested wisely. But so long as they are on American soil, there can be no question that the government and concerned citizens must do whatever is needed to see that they are housed, fed, and given the medical care they need.

But that isn’t what’s at stake in this debate. Nobody is saying that the kids shouldn’t be cared for. But the notion, pushed by the United Nations and a growing volume of liberal commentators, is that we must treat these illegals as refugees and let them stay in America rather than being sent back home.

The argument for this proposition rests principally on the idea that the kids are in genuine danger from violence in their own countries. Looked at from that point of view, sending them back would be a death sentence. Thus, granting them asylum is being represented as not merely ethical but our obligation as civilized people.

But the problem with this reasoning is that if this position is allowed to stand, Central America and indeed, much of the rest of the world, might well empty out as immigrants seeking a better life pour into the United States.

It may well be that some of the unaccompanied minors who have come here recently in their tens of thousands would be in danger back home. But the laws regarding refugees were intended to provide a haven to those with a genuine fear of persecution because of their politics, ethnicity, or religious beliefs, not merely those who had the bad luck to live in a country where the rule of law has broken down. Violence is nothing new in Central American countries and even if it has surged lately, declaring that anyone who had fled these nations has a right to stay in the U.S. would render all existing immigration law and even the concept of borders meaningless.

Such compassion is, after all, relative. Those declaring that the United States must absorb children sent streaming over our borders by parents who hope they will be allowed to stay are not, after all, also advocating that war refugees from Syria, Iraq, or Afghanistan or conflicts in dozens of other countries also be taken in with no questions asked. The point of such demands is not merely humanitarian but to underscore demands that those already in the country illegally be allowed a path to legalization if not citizenship.

I have always been sympathetic to such arguments since it seems to me that 11 million people cannot be deported and therefore amnesty is what we’re experiencing now. But the border surge and the subsequent demands to grant tens of thousands of illegal aliens who are minors asylum demonstrates the danger of signaling that illegals will not be deported.

Granting refugee status to the current group of unaccompanied minors will herald the start of future surges that no amount of border patrol or improved security will be able to halt.

If these children deserve compassion, and they do, then by all means the U.S. should extend it to them. If it means more aid to the countries where they must be repatriated or the creation of centers in those countries where they can be protected against predators and poverty, then so be it. But if they are allowed to stay we might as well kiss goodbye any hope of America being able to police its borders or to have a say in who comes or goes.

As the people of many Central American nations have learned to their sorrow, the collapse of the rule of law means is the beginning of the rule of predators and the end of compassion. If we are to avoid the same fate and to be of any use to those who understandably wish to come here–whether legally or illegally–we must not allow a false argument for compassion to undermine our rule of law.

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The Rule of Law in the Middle East

A reminder of why Israel is the United States’ only genuine democratic ally in the Middle East came today in the form of a story that is thought to be a black eye for the Jewish state. Ehud Olmert, the former prime minister of Israel and favorite of peace processors everywhere, was sentenced to six years in prison on corruption charges. Olmert’s downfall was as precipitous as it was unexpected. Political corruption is not unknown in Israel, but accusations against other political leaders had, with a few exceptions, rarely led to jail terms for those involved. Most savvy Israeli political observers seemed to have thought Olmert would also escape, especially since an earlier trial had resulted in a legal slap on the wrist for the slippery former PM rather than jail. But when his former top assistant dating back to his time as mayor of Jerusalem dropped the proverbial dime on him, it was clear that he had run out of “get out of jail free” cards.

This is good news for Israel since Olmert’s fate stands as a warning to the other members of the country’s political class that there are consequences for stealing. But it is also heartening for Americans to see again that although, like their own country, Israel is not perfect, it is still a nation where the rule of law prevails. Though the spectacle of a man with the Israeli equivalent of a Secret Service detail being hauled off to jail is sobering, the ability of the nation’s legal system to successfully prosecute a man who was not only powerful but well liked by its media as well as by the leaders of its sole superpower ally is proof that the Jewish state walks the walk about democracy and the rule of law. This provides not only a stark contrast to its undemocratic neighbors, but also gives the lie to the assumptions that are the foundation of the canards about it being an “apartheid state.”

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A reminder of why Israel is the United States’ only genuine democratic ally in the Middle East came today in the form of a story that is thought to be a black eye for the Jewish state. Ehud Olmert, the former prime minister of Israel and favorite of peace processors everywhere, was sentenced to six years in prison on corruption charges. Olmert’s downfall was as precipitous as it was unexpected. Political corruption is not unknown in Israel, but accusations against other political leaders had, with a few exceptions, rarely led to jail terms for those involved. Most savvy Israeli political observers seemed to have thought Olmert would also escape, especially since an earlier trial had resulted in a legal slap on the wrist for the slippery former PM rather than jail. But when his former top assistant dating back to his time as mayor of Jerusalem dropped the proverbial dime on him, it was clear that he had run out of “get out of jail free” cards.

This is good news for Israel since Olmert’s fate stands as a warning to the other members of the country’s political class that there are consequences for stealing. But it is also heartening for Americans to see again that although, like their own country, Israel is not perfect, it is still a nation where the rule of law prevails. Though the spectacle of a man with the Israeli equivalent of a Secret Service detail being hauled off to jail is sobering, the ability of the nation’s legal system to successfully prosecute a man who was not only powerful but well liked by its media as well as by the leaders of its sole superpower ally is proof that the Jewish state walks the walk about democracy and the rule of law. This provides not only a stark contrast to its undemocratic neighbors, but also gives the lie to the assumptions that are the foundation of the canards about it being an “apartheid state.”

The comparison between Israel and the surrounding Arab countries, including Hamas-ruled Gaza and the autonomous Palestinian Authority in the West Bank, is all too obvious. In a region of the world where governments are only changed via coups and murder and where concepts about the rule of law are often seen as an alien Western innovation, Israeli democracy stands out as a beacon that attracts even the admiration of those who profess to wish to destroy it.

But let’s understand that the claims that Israel is, in effect, a limited democracy that doesn’t afford equal rights under the law for all of its citizens is also undermined by what happened to Olmert. For all of the imperfections that are part of any democracy, Israel is a country with an independent judiciary and laws that are applied across the board. The false charges that it discriminates against Arabs are given the lie by the fact that even West Bank Arabs—who remain governed by the Jordanian laws that existed before 1967 or Palestinian Authority regulations—can appeal to the Israeli courts for justice against the Israeli army and government.

The rule of law in Israel is, as is also the case for the United States, a foundation for its democratic governance and its successful economy. Stating this seems obvious to the country’s friends and admirers. But at a time when it is increasingly under assault from those advocating boycotts against it, the reality of life in democratic Israel is often being obscured by the “apartheid” libels wielded by critics whose purpose is not reform but to destroy it. That is especially true on college campuses, where, as I wrote last week, BDS (boycott, divest, sanctions) advocates are seeking to stigmatize those who visit the country because those who do so learn the truth.

So rather than mourning the fall of a sleazy politician who behaved in the manner that we associate with American urban political machines rather than the heroic “warrior” culture we generally associate with Israeli leaders, the country’s friends should be celebrating this story. Whenever the rule of law triumphs, democracy is strengthened.

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Obama, Deportations, and the Rule of Law

President Obama did not completely satisfy Hispanic members of Congress yesterday when he told them he had ordered a review of the administration’s enforcement of immigration laws. As the New York Times reports, what these lawmakers and the activists on behalf of the cause of illegal immigrants want is not a review but a presidential order halting deportations. In speaking of the review the president said he was concerned about the impact deportations have on the families. The question is how far the president, whose administration has actually reportedly deported two million people since he took office, will go on this issue in disregarding the law and Congress. Coming at a time when House Republicans are already up in arms about the president’s selective enforcement of other measures like his ObamaCare legislation, a decision to effectively annul immigration laws would be something akin to a declaration of war on Congress.

A deportation suspension would appeal to a Hispanic base that the president badly needs to turn out for Democrats this fall, as well as to his party’s base. But it would be a terrible mistake. Doing so would not only lend even more credence to the accusations being leveled at Obama about his contempt for the Constitution. It would also kill any hope for immigration reform for the foreseeable future.

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President Obama did not completely satisfy Hispanic members of Congress yesterday when he told them he had ordered a review of the administration’s enforcement of immigration laws. As the New York Times reports, what these lawmakers and the activists on behalf of the cause of illegal immigrants want is not a review but a presidential order halting deportations. In speaking of the review the president said he was concerned about the impact deportations have on the families. The question is how far the president, whose administration has actually reportedly deported two million people since he took office, will go on this issue in disregarding the law and Congress. Coming at a time when House Republicans are already up in arms about the president’s selective enforcement of other measures like his ObamaCare legislation, a decision to effectively annul immigration laws would be something akin to a declaration of war on Congress.

A deportation suspension would appeal to a Hispanic base that the president badly needs to turn out for Democrats this fall, as well as to his party’s base. But it would be a terrible mistake. Doing so would not only lend even more credence to the accusations being leveled at Obama about his contempt for the Constitution. It would also kill any hope for immigration reform for the foreseeable future.

The president’s concern for the families of the deported should not be dismissed by conservatives who are used to trashing everything the president does. Tearing apart these families, many of whom are legal residents or American citizens, takes a toll on our social welfare system. With an estimated 11 million illegals in the country, enforcement of these laws is, at best, haphazard and often arbitrary and capricious. Those caught by the Immigration and Naturalization Service are often in legal limbo for indefinite periods where due process is not always a given.

But while those affected deserve compassion, the fact remains that a system that not only tolerates the flouting of the law but also actively encourages it from the very top of the political food chain is one in which the rule of law has collapsed. It’s one thing for pro-immigration forces to call for a change in the laws to allow those who have entered the country without permission to have a path to legality or even citizenship. It’s quite another to say that the president should single-handedly abrogate the laws of the land.

Critics of Rep. Trey Gowdy’s proposed legislation that would allow Congress to sue the executive branch to enforce the law are right to point out that presidents have been selectively enforcing the law since the earliest days of the republic. Even if Gowdy’s bill passed, no court would touch a dispute that would be rightly understood as essentially a political controversy rather than a legal one. But if the president goes down the path of suspending all deportations, we will have passed a critical tipping point toward the creation of a new super-imperial presidency that transcends law or the Constitution.

That should worry everyone. But doing so should particularly concern immigration activists who still hope that Congress will act to fix a broken system. Though the bipartisan comprehensive immigration compromise that passed the Senate has no chance of getting through the House this year, supporters of the measure should not treat that as the end of the battle. There is a decent chance some kind of reform will pass in the next Congress no matter whether it is still split between the parties or under sole Republican control. But if Obama unilaterally annuls the existing laws by suspending deportations, it will worsen the split on the issue in the country and especially in Congress. If Congress no longer believes the executive branch will secure the border—an essential part of any possible immigration fix—there will be no way to convince them to change the system. Such a move could end any chance of reform for the foreseeable future.

With that in mind, Obama needs to tread carefully on deportations. As much as he likes to rule on his own, this is one executive order that he should never issue.

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Mumia, Adegbile and the Rule of Law

Two days after a shocking defeat, liberals are still grousing about the Senate spiking the nomination of former NAACP Legal Fund Director Debo Adegbile to be head of the Justice Department’s Civil Rights Division. What really burns them up is not just that Republicans successfully filibustered one of President Obama’s choices for a government post but that six Democrats joined with them. But rather than take responsibility for putting forward a controversial figure who was sure to provoke bitter opposition from both sides of the aisle, liberals are reverting to form by blaming their defeat on conservative demagoguery and racism.

This is more than disingenuous. Adegbile lost for one reason and one reason only and its name is Mumia Abu-Jamal, the radical who gunned down Philadelphia Policeman Daniel Faulkner in a cold-blooded murder in 1981. Under the leadership of Adegbile, the NAACP Legal Fund worked on Abu-Jamal’s appeal. The White House and Adegbile’s defenders in the press say blaming the lawyer for his client’s crime is both unfair and an assault on our judicial system. But contrary to this spin, Adegbile and the NAACP were not a latter day version of patriot John Adams defending the British soldiers who perpetrated the Boston Massacre. Far from merely writing briefs on Constitutional issues involving Abu-Jamal’s conviction, Adegbile’s lawyers were part of the propaganda campaign aimed at besmirching the victim and the Philadelphia Police Department and portraying a killer who was literally caught red-handed with the murder weapon as a heroic martyr. Under these circumstances, it’s little wonder that some Democrats wanted no part of the nomination, especially those like Pennsylvania’s Bob Casey, Jr. and Delaware’s Chris Coons voted against cloture for the nomination, whose constituents know the facts of the case and despicable work of Abu-Jamal’s cheerleaders.

This debacle can be partly explained by the White House’s cluelessness in dealing with Congress. Reportedly, Majority Leader Harry Reid told the administration he didn’t have the votes to push Adegbile through but the president wouldn’t budge and the result was what the New York Times called “the highest-profile defeat of a nominee on the Senate floor in the Obama presidency.” But while those falsely alleging that this was the work of a conservative conspiracy against civil rights are blowing smoke, there is more to this story than just a case of Obama overreaching in an attempt to pack his administration with like-minded leftists. The reason why the president and Holder wanted Adegbile so badly is because a believer in the Mumia myth fits in perfectly with their vision for using the Civil Rights Division as a political weapon to push their left-wing agenda.

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Two days after a shocking defeat, liberals are still grousing about the Senate spiking the nomination of former NAACP Legal Fund Director Debo Adegbile to be head of the Justice Department’s Civil Rights Division. What really burns them up is not just that Republicans successfully filibustered one of President Obama’s choices for a government post but that six Democrats joined with them. But rather than take responsibility for putting forward a controversial figure who was sure to provoke bitter opposition from both sides of the aisle, liberals are reverting to form by blaming their defeat on conservative demagoguery and racism.

This is more than disingenuous. Adegbile lost for one reason and one reason only and its name is Mumia Abu-Jamal, the radical who gunned down Philadelphia Policeman Daniel Faulkner in a cold-blooded murder in 1981. Under the leadership of Adegbile, the NAACP Legal Fund worked on Abu-Jamal’s appeal. The White House and Adegbile’s defenders in the press say blaming the lawyer for his client’s crime is both unfair and an assault on our judicial system. But contrary to this spin, Adegbile and the NAACP were not a latter day version of patriot John Adams defending the British soldiers who perpetrated the Boston Massacre. Far from merely writing briefs on Constitutional issues involving Abu-Jamal’s conviction, Adegbile’s lawyers were part of the propaganda campaign aimed at besmirching the victim and the Philadelphia Police Department and portraying a killer who was literally caught red-handed with the murder weapon as a heroic martyr. Under these circumstances, it’s little wonder that some Democrats wanted no part of the nomination, especially those like Pennsylvania’s Bob Casey, Jr. and Delaware’s Chris Coons voted against cloture for the nomination, whose constituents know the facts of the case and despicable work of Abu-Jamal’s cheerleaders.

This debacle can be partly explained by the White House’s cluelessness in dealing with Congress. Reportedly, Majority Leader Harry Reid told the administration he didn’t have the votes to push Adegbile through but the president wouldn’t budge and the result was what the New York Times called “the highest-profile defeat of a nominee on the Senate floor in the Obama presidency.” But while those falsely alleging that this was the work of a conservative conspiracy against civil rights are blowing smoke, there is more to this story than just a case of Obama overreaching in an attempt to pack his administration with like-minded leftists. The reason why the president and Holder wanted Adegbile so badly is because a believer in the Mumia myth fits in perfectly with their vision for using the Civil Rights Division as a political weapon to push their left-wing agenda.

While Adegbile’s involvement with the Mumia travesty made him a political liability, that sort of radical take on the justice system is what recommended him to the administration. It must be understood that in the last five years, the Civil Rights Division is not so much about enforcing the laws against discrimination but employing the power of the federal government to pursue cases that bolstered the Democrats attempt to portray the GOP as racist. The division’s lawyers have been Obama’s legal shock troops seeking to invalidate voter ID laws on bogus charges of racism as well as a raft of other initiatives all designed to promote the idea that America was boiling over with racist crime and conspiracy at a time when both the president and the attorney general were African-American. But while continually portraying the country as a hotbed of racist oppression, this same division refused to prosecute a case against the New Black Panther Party for intimidating voters in Philadelphia. Just as the president thinks he can pick and choose what laws to enforce, so, too, does the DOJ use the same unconstitutional principle to undermine the rule of law.

Far from a distraction, the Mumia Abu-Jamal connection was actually quite germane to what is the animating spirit of federal civil rights lawyers under Democratic administrations. Instead of judicious applications of the statutes, what Obama wants for his Civil Rights Division are radicals like Adegbile. His defeat is not, as Adam Serwer wrote yesterday on MSNBC.com, part of a Republican war on civil rights but a rare defeat for liberals in their efforts to use the power of the Justice Department to gain victories in court they could never win at the ballot box. As such, the end of the Adegbile nomination was a rare victory for the rule of law against a lawless Obama administration.

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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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The Illegal Lawyer and the Rule of Law

On the surface, the tale of Sergio Garcia’s legal triumph is heart-warming. The native of Mexico worked hard in several jobs and went to college, eventually graduating from Cal Northern School of Law and passed the state’s unusually challenging bar exam on his first try. He should be celebrated as an example of how the American dream still works for immigrants who are willing to follow the same path emigrants from other countries pursued in the past. But because Garcia entered this country illegally, his successful attempt to practice as an attorney illustrates both the dysfunction of the current system of legal immigration as well as how counter-productive some of the efforts of those pushing for change have been.

Garcia is in the news today because the California Supreme Court yesterday upheld a law passed by the state legislature that enabled illegal immigrants to practice law and be admitted by the state bar association. This is in spite of the fact that federal law makes it illegal for any business to hire him because of his immigration status. In effect, what the liberal-dominated legislature and court have done is to attempt to annul a federal law by state fiat. Indeed, the state court went even further, framing the issue in such a manner as to deny that there was, in fact, anything amiss about a person entering this country illegally and then claiming the right to participate as an officer of the court in our legal system:

“We conclude that the fact that an undocumented immigrant’s presence in this country violates federal statutes is not itself a sufficient or persuasive basis for denying undocumented immigrants, as a class, admission to the state bar,” Chief Justice Tani Cantil-Sakauye wrote in her opinion. “The fact that an undocumented immigrant is present in the United States without lawful authorization does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the state bar.”

It’s not entirely clear whether Garcia can legally practice on his own and charge clients for his services. Until that is sorted out, he will remain a liberal icon who, according to the New York Times, actually makes a living as an inspirational speaker. But what he and his supporters have also accomplished is to give the large number of Americans who believe our immigration laws should be enforced yet another reason to oppose efforts to reform the system. Rather than work to change a legal structure that is failing, liberals are flouting it, effectively making the anti-immigrant camp’s case that what is at stake in this debate is not policy but the rule of law itself.

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On the surface, the tale of Sergio Garcia’s legal triumph is heart-warming. The native of Mexico worked hard in several jobs and went to college, eventually graduating from Cal Northern School of Law and passed the state’s unusually challenging bar exam on his first try. He should be celebrated as an example of how the American dream still works for immigrants who are willing to follow the same path emigrants from other countries pursued in the past. But because Garcia entered this country illegally, his successful attempt to practice as an attorney illustrates both the dysfunction of the current system of legal immigration as well as how counter-productive some of the efforts of those pushing for change have been.

Garcia is in the news today because the California Supreme Court yesterday upheld a law passed by the state legislature that enabled illegal immigrants to practice law and be admitted by the state bar association. This is in spite of the fact that federal law makes it illegal for any business to hire him because of his immigration status. In effect, what the liberal-dominated legislature and court have done is to attempt to annul a federal law by state fiat. Indeed, the state court went even further, framing the issue in such a manner as to deny that there was, in fact, anything amiss about a person entering this country illegally and then claiming the right to participate as an officer of the court in our legal system:

“We conclude that the fact that an undocumented immigrant’s presence in this country violates federal statutes is not itself a sufficient or persuasive basis for denying undocumented immigrants, as a class, admission to the state bar,” Chief Justice Tani Cantil-Sakauye wrote in her opinion. “The fact that an undocumented immigrant is present in the United States without lawful authorization does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the state bar.”

It’s not entirely clear whether Garcia can legally practice on his own and charge clients for his services. Until that is sorted out, he will remain a liberal icon who, according to the New York Times, actually makes a living as an inspirational speaker. But what he and his supporters have also accomplished is to give the large number of Americans who believe our immigration laws should be enforced yet another reason to oppose efforts to reform the system. Rather than work to change a legal structure that is failing, liberals are flouting it, effectively making the anti-immigrant camp’s case that what is at stake in this debate is not policy but the rule of law itself.

Gracia’s difficulties in obtaining legal status bolster the justification for California’s actions to flout U.S. law. Though his parents first brought him to the United States illegally when he was 17 months old, he moved back and forth across the border until coming to stay for good at the age of 17. At that time, he applied for legal status using his father, who had become a legal resident as a sponsor. Unfortunately, that request is still pending 19 years later. That shows how outrageously dysfunctional the system has become. Like millions of other illegals who have also become productive residents of this country Garcia deserves a chance to obtain legal status and get on the path to citizenship. In the absence of progress on that front, California thinks it is justified in defying federal law.

But the notion that California can opt out of federal immigration laws is as absurd as the one that claims Garcia can swear (as he must if he is to become a lawyer) to uphold the laws of the United States even though his actions and presence in this country demonstrate his inability, thanks to the complete breakdown of the federal government’s enforcement of existing immigration statutes, to comply with some of them. Though this is a trick that President Obama and  his Attorney General played with their selective enforcement of federal law, the notion of illegal immigrants being granted privileges as officers of the court turns logic and effective jurisprudence on its head.

Garcia’s tale aptly illustrates the point Senator Marco Rubio has repeatedly made in defense of his efforts to promote immigration reform. In contrast to with any of the proposed plans–such as the bipartisan immigration bill he co-sponsored in the Senate –creating “amnesty” for illegals — the amnesty now in place is a system that has all but collapsed and is one that’s routinely defied by immigrants, employers and a growing number of states and courts.

But the only way to persuade many Americans who are reluctant to take action to resolve the dilemma of millions of illegals currently in the country is to convince them that reform is not synonymous with efforts to supersede existing laws. What California has done in the case of Sergio Garcia is to effectively make the case that the U.S. has no right to control its borders or to determine who may enter the country. Contrary to the decision of the California Supreme Court, those who violate the law via illegal entry are not the moral equivalent of a driver who receives a parking ticket. If the system is to be changed it can only be via a process, such as the one that Rubio backed (and which has little or no chance of passage in the House of Representatives) that would require illegals to pay penalties and go to the back of the line to obtain legal status.

A legal system that countenances an officer of the court whose presence in the country is itself a violation of legal codes is not one likely to inspire respect for the concept of law. Actions such as that of the California legislature and its Supreme Court will only make it harder for immigration reform advocates to ultimately prevail. Rather than hastening the day when his fellow illegals will be granted a path to citizenship, Garcia’s triumph will only strengthen the resolve of those who see immigration reform as an unacceptable attempt to defeat all efforts to secure the border and uphold the rule of law.

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