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I am no lawyer, but some recent developments seem to beg some kind of answer from the gaggle of lawyers and so-called constitutionalists in residence on Capitol Hill:

Does any president have the legal authority to tell the Justice Department not to enforce the law relating to people who are in the country illegally? I can’t find the section in the Constitution of the United States that makes the chief executive the supreme judicial authority, nor the expression “it’s the right thing to do.”

Does any president have the authority to begin a war (cyber in this case) against another nation that is not imminently threatening the United States? There’s something in Article 1 about Congress having the sole authority to declare war and in Article 2 that the president would be commander in chief of the armed forces in an actual war, but I can’t find the bit about starting a war in secret by executive fiat.

Does any president have the authority to assassinate American citizens living overseas or to draw up kill lists of foreigners which are then turned over to the intelligence agencies and armed services for execution? Can’t find that in the Constitution either except in Amendments 4, 5, and 6, all of which appear to argue quite the opposite point of view.

If Bill Clinton could be threatened with impeachment for screwing an obviously consenting intern, why is Barack Obama still in office?

(Republished from The American Conservative by permission of author or representative)
• Category: Foreign Policy • Tags: Immigration 
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  1. Carl says:

    I agree with points two and three. In regards to point one, the President does have the authority to issue a pardon, although I don’t know if Obama has formally taken that step or not.

  2. The Constitution is dead. Its been dead for decades. It was killed by the 14th,16th and 17th Amendments. It was killed by the Federal Reserve Act,the Social Security Act,joining the U.N.,the Civil Rights Act plus a series of Constitutional interpretations that are bizarre in the least. We don’t live in a Republic anymore. That’s long gone. We live in a mobocracy controlled by an oligarch of elitist men. The rule of law is a thing of the past. Instead of the rule of law we live under the rule of men. Get used to it. Our Liberty has been lost and replaced with the security of a Social Security number. That’s the truth.

  3. Aaron says: • Website

    1. “Does any president have the legal authority to tell the Justice Department not to enforce the law…” – you’re off to a weak start. Every President has set his own priorities from day one. If you had to enforce all laws equally, no priorities possible, the government couldn’t function. (Do you also complain that the executive is working too hard to identify and deport convicted criminals – if you don’t have a problem with that, you already understand the actual issue.)

    2. “Does any president have the authority to begin a war (cyber in this case)….” A bit hyperbolic, there, aren’t you? You, I, and a whole lot of others might like it if Congress would step up and do its job on this type of issue – defining parameters of where its powers end and the President’s begin, doing something more than “wink, wink, nudge, nudge” when one would think the Constitution would require a declaration of war, and the like. But it doesn’t, so here we are. I haven’t been following Republican reaction here – is anybody complaining that the President should not be interfering with Iran’s nuclear program, or are they instead complaining that we’re not arming Iranian rebels and perhaps planning or starting a bombing campaign? This, alas, is the world we live in.

    3. “Does any president have the authority to assassinate American citizens living overseas or to draw up kill lists of foreigners….” This ties into #2 – Congress should be addressing the nature and scope of our present, long-term armed conflicts and defining parameters and protocols. But it won’t, so we get one undeclared war after another, with Presidents tending to expand upon each other’s claimed powers – which may be criticized but never seem to be challenged or limited by Congress. If Congress did its job and declared a war, there would be no issue with the President identifying traitors and enemy leaders to be targeted; as it stands, Congress doesn’t declare wars any more… and as it also doesn’t object to the President’s unilateralism this, again, is our reality.

    4. You could ask the same question about GW, no? Is your complaint here that the Republican Party set the bar so low with its impeachment of Clinton that no President should avoid a similar fate? Or is it that it’s a crying shame that more serious offenses, from Iran-Contra through “done strikes on U.S. citizens, even if they’re working against U.S. interests”, do not result in impeachment – that the two words, “national security”, seem to give a President carte blanche in the face of a passive, deferential Congress?

  4. Charge 1 is debatable. As much as I dislike this particular decision, the President is tasked with directing the way that laws are enforced, and part of that includes prioritization and directing of resources. If the Federal Code weren’t so huge, then I can see how ordering that a part of it was not to be enforced would be an impeachable offense. But since the current body of law is unenforcable, I don’t see why it should be an impeachable offense to decide which parts should be lowest priority. This is what Congress deserves for passing so many stupid laws and empowering so many stupid government agencies to write stupid regulations. Who are we to say that immigration law is more important than making sure that cabbage producers don’t collude?

    Charge 2 is ambiguous. What is “cyber war?” It seems to me that it consists of sending a bunch of unsolicited information to sensitive targets around the world. It’s unwise, but is it “war?” Does it involve the mobilization of force, as commonly understood? Does it cost lives, either American or Iranian? Not directly. If being stupid was, by itself, impeachable, then we’d see a lot more impeachment charges.

    Charge 3, of course, is a slam-dunk, impeach him now, run him out on a rail, obvious-guilt grounds for impeachment. It’s shameful that impeachment hasn’t occurred. Idiocy and cowardice are the only two explanations, almost certainly working in tandem.

  5. Anonymous • Disclaimer says:

    Refusing to enforce the law regarding hundreds of thousands if not millions of people in clear violation of it is not a pardon but a usurpation of an unconstitutional veto the congress cannot override.

    On the other hand, an “act of war” is not making war unless somebody insists on going to war as a result.

  6. TomB says:

    It seems to me impeachment talk here obscures a more dangerous, systemic point about where we are and where we are headed.

    Impeachment has always been seen as a one-off, political rather than judicial act, and nobody pretends it has ever been applied in any even attempted consistent way—the hallmark of a law and a judicial matter. In essence, the Framers might as well have added to its criterion that it be applied only when a President’s act has been “wildly unpopular.”

    That said, *if* they *were* wildly unpopular you bet I think the Supreme Court would never intervene against an impeachment of a President who, like Obama, has now just flatly come out and said he was refusing to enforce the law. And the same with committing an act of war against Iran with no Congressional authorization. (As to killing overseas Americans or others however, I have no doubt the powers Congress gave Bush more than authorize same.)

    But again I think such impeachment talk distracts us from the more generalized, *routinized* kind of … lawlessness we are seeing. And as Aaron observed so importantly, Mr. Bush was neck deep in doing the same and might even be tagged with that routinization.

    It’s obviously a form of extremism, with the remarkable thing indeed being that we have now routinized that extremism. Feel strongly enough that you just have to wire-tap the entire nation? Go ahead, damnit; there’s enough wild-eyed zealots and partisans out there to protect you. Wanna pick up some Hispanic votes? Go ahead and blatantly say they won’t be prosecuted for violating our laws; once again there’s more than enough zealots and partisans to defend you.

    Of course we’ve always had zealots who almost regarded the law and recognized lawful processes as invalid. But it’s the simple mainstream *partisans* now who obviously no longer feel that that lawfulness is a necessary precondition. Who indeed have imbibed the idea that when they disagree with the law by definition it is so corrupt as to be regarded as invalid.

    Thus I think it’s this change in the *mainstream* that’s most remarkable here, and most portentous. Again as Aaron notes, who is going to do anything but laugh when the Republicans, who cheered Bush’s wire-tapping, now go crying about Obama saying he isn’t going to enforce the law? And vice-versa.

    In a very big way then I think libertarian jerry is right: The Constitution died when the great mass of people just simply demonstrated they no longer agreed with it.

    The killers of the Constitution were just too persuasive in all the ways they managed it, partly by noting that of course it was never perfectly followed, but even moreso it seems to me by just simply ridiculing those who insisted on any strict observance of any absolutes:

    Nixon involved in a conspiracy to obstruct justice? “Oh come on,” some said at the time, “look at JFK!” But that was the old days, so that when Clinton came along the audience was more receptive: “You really want to remove a President for a mere blow-job? Ha ha ha…,” ignoring, of course, that the man had clearly committed perjury.

    And what a lesson for Bush this was! After all, if a Pres. is okay lying about something as irrelevant as sex, well what about when stretching the truth in the service of national security? (Including the outright lie that Iraq was about 9/11.) And … “my God if it’s okay to lie about sex of *course* it’s okay to ignore the law and wire-tap just a few without any warrant or etc. when we are at war….” And the Democrats, fingers in the wind back then, said nothing.

    The Great Weakness was thus found: All the enemies of the Constitution and law needed was that one period when *everyone* found them dispensable, because from there no-one anymore could argue going back with clean hands or lips.

    It’s now all just a matter of passing public opinion and passions now, with the Constitution and even recent law just effectively all saying “effective until sufficient mass sentiment desires otherwise.” Because once that point has been reached, forget it. The law is what the mob says the law is.

  7. Tim says:

    What a perfectly terrible article. I thought I had finally found a place with a sensible conservative voice, not this reactionary garbage that I could get absolutely anywhere.

    If this is the kind of thing I can expect here, I’ll keep looking elsewhere.

  8. nathan says:

    I agree the Constitution has been dead for years. Look at the last Bush administration. He had two options with bills put on his desk, sign or veto. But signing and then doing “signing statements” saying in essence, yes I signed this bill but I have zero intentions of executing this law? Where is that in the Constitutuion? Not to mention indefinitely detaining Americans on American soil like Padilla? Authorizing the use of torture in direct violation of American law? And Congress with the misnamed Patriot Act?

    And where are the other republicans? A lot of them today support the Fifth Amendment destroying NDAA language. One republican congressman in USA Today said American citizens have nothing to fear from indefinite detention. After all there is the writ of habeus corpus. That sure comes as a shock to those Japanese Americans during WWII. And of course finding people to go into homes and take people to detention sites won’t be a problem. Just read the book “Ordinary Men” or look at some of the studies that were done regarding obedience to authority figures.

    Presidents love powere and will take and abuse all they can get. And “conservatives” during the Bush years stood by and applauded his gross violations of the Constitution. So why the complaints now?

  9. Matt says:

    you’re off to a weak start. Every President has set his own priorities from day one. If you had to enforce all laws equally, no priorities possible, the government couldn’t function.

    This is the common line, but it is nonsense. This is not a case where the law cannot be enforced fully due to some scarcity of resources, it is a case where the president says that he can do it-and by his testimony has been-he’s just not going to because he doesn’t care. Imagine the storm if the relevant governing entity announced that it wasn’t going to enforce the laws against pedophilia for cases where the victim was older than 12.

  10. With all due respect to some of the opinions expressed above, Obama is not exercising his prerogative to prioritize the Justice Department work load – he is saying that the existing law as it applies to a certain community will not be enforced by his administration. That is something quite different. Regarding Cyberwar, the Pentagon itself defines a cyber attack such as we have initiated against Iran as an act of war.

    We appear to mostly agree that killing US citizens without giving them a chance to defend themselves is outside the pale. So the question becomes what remedies do we have for unconstitutional assertion of executive privilege? I am open to suggestions short of impeachment.

  11. Borodino says:

    “… what remedies do we have for unconstitutional assertion of executive privilege? I am open to suggestions short of impeachment.”

    The only sanctioning remedy available to the people is the vote, in this case voting the President out. The Supreme Court should also have drawn the relevant lines and demonstrated the stomach to face down a President who crossed them, but that hasn’t happened.

    Personally I wouldn’t limit the remedies to the range “short of impeachment”. In fact, I would support legislation creating a graduated system of penalties up to and including death for Presidents and other executive branch officials found to have violated the Constitution. Concentrate their minds and revivify their fading memories of Constitutional Law class with a timely and salubrious revival of the old Sword of Damocles idea. A wise nation must periodically remind the kind of people attracted to power that it comes at a price, one that they may have to pay.

  12. TomB says:

    “So the question becomes what remedies do we have for unconstitutional assertion of executive privilege?”

    Why not embrace it? Indeed isn’t a simply huge problem in our present system the lack of ability to hold responsible parties responsible? Okay, so clarify things: Abolish Congress. Give a President—call ’em whatever you want—a five or six year term at the end of which their ability to point fingers at others is fantastically limited. And getting rid of Congress gets rid of huge barriers the S. Ct. has had in terms of enforcing the Constitution, especially in seducing it into essentially saying “let the other two branches sort this out politically.”

    After all, and as I said before, it’s clear now that as to almost anything there’s always going to be enough people to support whatever a Prez. does in derogation of Congress’ power so as to make impeachment essentially moot. And clearly Congress hates responsibility so much that it won’t defend its own prerogatives.

    So why not go with the flow?

    Especially since, I would confidently predict, any and all other suggestions within the present model are going to be ones thought of before and have accomplished nothing before, and will just as before go nowhere now.

  13. Anonymous • Disclaimer says:

    Scott, Bill Clinton was not ‘threatened with impeachment for screwing an obviously consenting intern.’ He was impeached for obstruction of justice and perjury. Spreading histrionic disinformation is not helpful.

  14. Carl says:


    Your proposal sounds radical, but it’s not really so different than parliamentary democracy. In that case, there’s formally no executive rather than no legislature, but the effect is equivalent. I agree that a parliamentary system would have greater accountability, but as we see from Europe and Japan, that’s not enough to have good government. You also need politicians who care about doing the right thing.

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