Unconstitutional Acts of the President

While President Bush Jr. was in office I was aware of many unconstitutional things that his administration was involved in. Obama isn’t any better. If anything this administration is worse because we have been primed for our government to do anything without regard for laws or rules. A few come to mind immediately.

The Affordable Care Act, or Obamacare, was/is being implemented in a hodgepodge fashion. One rule, set to begin enforcement in 2014, was that employers with more than 50 full-time employees had to provide qualifying health insurance to their employees or pay a fine. The presidential administration delayed enforcement of that rule by one year. That might not seem like much, but that was one of 27 tweaks made to the ACA. These were made by the executive branch alone, without legislative authority. This is not permissible. The role of the executive is to carry out faithfully the laws passed by the legislative branch. While the executive is granted some leeway in the manner of execution, the execution itself is not to be dispensed with. The president was announcing decisions to ignore the laws or change the way the laws were executed for political expediency.

In January, 2012, the President made appointments to the National Labor Relations Board. The problem here is that they were “recess appointments” made while Congress was not in recess. Congress has always been able to make its own determinations about when it is and is not in recess, and at the time it was holding sessions every three days for the express purpose of preventing these recess appointments. Recess appointments were, traditionally, an allowance made for when Congress had to take long recesses due to the time it took to travel. When a vacancy occurred during a recess and a president did not have an opportunity to consult Congress, the president was permitted to make a recess appointment. In recent years it has not been as strict and presidents have made recess appointments for vacancies that occurred while Congress was in session. Forbes has a good analysis of the different arguments used to support the recess appointments and why each are inexcusable as applied. Obama suggested that the period between the every-third-day session was a mini-recess and made the appointments there, something the Supreme Court justices also seemed to find would destroy the recess appointments clause. NLRB v. Canning, a SCOTUS case heard this term but not yet decided, will decide the validity of the recess appointments. The appointments again demonstrate the administration’s willingness to dispense with constitutionality to further political expediency.

Finally, there’s the recent case of the Bergdahl prisoner swap. Sgt. Bergdahl has been held by the Taliban for a few years now. The Taliban agreed to a prisoner exchange – Bergdahl in exchange for five Taliban members held at Guantanamo Bay. In the National Defense Authorization Act of 2014, Congress must have 30 days prior notice of any prisoner transfer to another nation (section 1033(a)(1)). While the President argued that this was an unconstitutional limit on executive power and had made a signing statement to that effect, he had not let Congress know in advance at all. The President “putting Congress on notice” that he intended to act quickly if such a situation arose does not satisfy the law. Congress was very opposed to the trade, as the five Taliban men to be released were considered dangerous, the man to be returned was considered by many to be a deserter and traitor, and the “risks” that the President suggests the US would have been exposed to if the trade had not been completed in less than 30 days are not clear. Expediency, again, trumped the law for the President.

These are not everything, and this president is certainly not the only one to act unconstitutionally. But if we can’t trust our president to faithfully execute the laws of the United States, what good is the presidency? Impeachment seems the fitting solution here, as no other penalty would remove the unfaithful executive. Congress acts as if they are so offended by these indignities but I sadly doubt they would follow the proper course and impeach.