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December 6, 2013

The Usurpation of Power

Joe Charlebois

Article I, Section I of the United States Constitution states: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Since the first days of his presidency, Barack Obama has sought to destroy the separation of powers through executive orders.


Constitutional scholars and experts of very disparate shades in the political spectrum agree.


This week in front of the Committee on the Judiciary, Professor Jonathan Turley, of George Washington University, addressed the committee led by Chairman Bob Goodlatte (R., VA) and Ranking Member John Conyers (D., MI) with a resounding critique and alarm of what he sees as the birth of a true imperial presidency.


An imperial presidency may be defined as the concentration of executive power through presidential actions such as the use of signing statements that circumvent congressional action in essence creating a line item veto. Or it can be combined with the seemingly unending growth of the "fourth branch," the bureaucracy.


The federal bureaucracy has become – in many ways – more powerful that Congress. It has the unbridled ability to create statutes and regulations that hold the power of law. Even more disturbing is the fact that the citizen has little recourse against the bureaucracy as there is nearly no way to hold agencies accountable for their actions – as they are not elected – and they are afforded the protection of being a federal employee.


There is history that previous presidents have taken advantage of such tools as signing statements and prioritization policies to put their spin on newly signed legislation; but few, if any, have ever issued non-enforcement orders or non-defense orders which are clearly extra constitutional.


Over the past few months those who would staunchly defend the Affordable Care Act by stating "it's the law of the land, get over it…" in essence are doing no such thing. In reality the legislation that was passed in a completely partisan way is not what exists today.


According to research done by Grace-Marie Turner, president of the Galen Institute, in her column: "At least 27 significant changes already have been made to Obamacare," 10 of these changes were done by executive order. The president overstepped his bounds when he put these orders into effect. Any change made to a law has to be done through the legislative process. The rush to push through the monstrosity that is the ACA led to many intended and unintended consequences. After much political backlash, the president has backpedalled on his signature piece of legislation, making sure he pays off his supporters with enough delay in the laws implementation or minimizing the level of pain until after the mid-term elections.


Here are just five of the 10 examples that Ms. Turner points out that are executive orders changing the law as written. They are the congressional opt-out; Employer Mandate delay; Self-Attestation on income verification; Exchange Enrollment deadline extended for individuals and Small Business Exchange Enrollment delayed until 2015.


As Mr. Turley points out in his written statement for the Committee on the Judiciary dated December 3, 2013: "For decades, however, Congress has allowed its core authority to drain into a fourth branch of federal agencies with increasing insularity and independence. It has left Congress intact but inconsequential in some disputes. If this trend continues unabated, Congress will be left like some Maginot Line on the constitutional landscape – a sad relic of a once tripartite system of equal branches."


The question remains: Who will stand up to this confiscation of power by this president or any future president who cloaks his or her quest for power under the guise "we must get this done."


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