This column by ACRU General Counsel and Senior Fellow for the Carleson Center for Public Policy (CCPP) Peter Ferrara was published May 24, 2012 on Forbes.com.
President Obama’s most blatant first term abuses can be struck down by the check on Presidential power by an independent judiciary. For example, last year Obama purported to make “recess” appointments to the National Labor Relations Board (NLRB), when the Senate was not in recess. But the first time the NLRB so constituted tries to bring any enforcement action for any violation of any of its regulations, the defendant can nullify the prosecution by arguing it was not authorized by a legally constituted Board.
Similarly, the so-called Consumer Financial Protection Bureau established by Dodd-Frank is blatantly unconstitutional. It is organized under the structure of the Federal Reserve Board, which is not part of the Executive Branch, but technically a private sector organization with government ties. So it is not subject to Executive Branch oversight. Moreover, it is not subject to Congressional oversight and funding either, because it is authorized to draw its funding for its own budget which it alone is authorized to set.
Consequently, it is even more unconstitutional than the Public Company Accounting Oversight Board (PCAOB) established by the Sarbanes Oxley Act, which the Supreme Court struck down in Free Enterprise Fund v. Public Company Accounting Oversight Board in 2010. The Court ruled that the PCAOB lacked Executive Branch oversight and so was unconstitutional as in violation of the doctrine of separation of powers.
As a result, as soon as the Consumer Financial Protection Bureau tries to enforce any of its regulations, the defendant will be able to raise in its defense that the Bureau is unconstitutional and must be struck down.
But Obama has already shown in his first term that he can flout court decisions and orders. Outright lawlessness occurred in the offshore drilling moratorium imposed by Obama’s Interior Dept. in response to the 2010 Gulf oil spill. Phil Kerpen recounts in his book Democracy Denied: How Obama Is Ignoring You and Bypassing Congress to Radically Transform America–and How to Stop Him that Obama appointed an expert task force to make recommendations concerning how the federal government should respond to the spill. The task force report featured a recommendation for a six month moratorium on all deepwater drilling activities. But as Kerpen explains, “the recommendation for a moratorium was not supported by the authors of the task force report.” Task force authors wrote in a letter to Louisiana Governor Bobby Jindal and Senators David Vitter and Mary Landrieu,
“[W]e are concerned that our names are connected with the moratorium as proposed in the executive summary of the report. There is an implication that we have somehow agreed to or ‘peer reviewed’ the main recommendation of that report. This is not the case….[T]he scope of the moratorium on drilling which is in the executive summary differs in important ways from the recommendation in the draft which we reviewed. We believe the report does not justify the moratorium as written and that the moratorium as changed will not contribute measurably to increased safety and will have immediate and long term economic effects.”
Kerpen reports that the Executive Summary for the report was rewritten to endorse the moratorium by the staff of former White House energy czar Carol Browner. President Obama then used his staff rewritten task force report to justify the offshore drilling moratorium “with full knowledge that it would put more than 23,000 Americans out of work at a time of record high unemployment.” This is yet another example of the Obama public relations style I have called “calculated deception,” more worthy of a third world authoritarian government than the world’s leading liberal democracy.
Kerpen continues, explaining “On June 23, 2010, U.S. District Judge Martin Feldman issued a stinging 22 page decision, [with] an injunction to overturn the moratorium based on the political manipulation and the Interior Department’s utter failure to justify the breadth of the moratorium.” Judge Feldman wrote regarding the studies Interior cited for the moratorium:
“How these studies support a finding that shear equipment does not work consistently at 500 feet is incomprehensible. If some drilling equipment parts are flawed, is it rational to say all are? Are all planes a danger because one was? All oil tankers like Exxon Valdez? All trains? All mines? That sort of thinking seems heavy-handed and rather over-bearing.”
The Fifth Circuit Court of Appeals rejected the Obama Administration’s request for a stay of Feldman’s ruling. Yet Obama’s Interior Secretary Ken Salazar “reimposed a very similar moratorium disregarding the rulings of the two courts,” Kerpen reports. Salazar imperiously pronounced, “We will only lift the moratorium when I as Secretary of Interior am comfortable that we have significantly reduced those risks.” Salazar and the Interior Department were held in contempt of court by Feldman, to no avail.
Kerpen also discusses in detail the FCC’s adoption of net neutrality regulations on December 21, 2010. The foundation for those regulations is that the companies that invest in and build the Internet infrastructure can’t be trusted to manage it, arbitrarily favoring some users over others. So the government needs to step in and manage it, eventually taking over control of the Net.
Of course, the experience has been that under private management in the competitive market, the Internet has been the freest institution in the world. But wherever the government has stepped in to control the Web, that freedom has been restricted or squelched.
Obama’s FCC appointees adopted this regulation even though just 8 months earlier the D.C. Circuit Court of Appeals ruled unanimously in Comcast v. FCC that the FCC has no statutory authority for it. Kerpen also notes that in the 2010 Congressional campaigns, 95 candidates signed the pledge of the Progressive Change Campaign Committee to promote Net Neutrality and Internet regulation, and all 95 lost. Moreover, a bill introduced in Congress to provide FCC authority for such regulation garnered only 27 co-sponsors.
Yet Obama continues to implement such regulation heedless of the people, the courts and Congress.
Perhaps even more ominously for a second term, under Attorney General Eric Holder the Justice Department can’t be trusted to enforce the law against the Obama Administration or any of its political allies. The New Black Panther Party conducted blatant voter intimidation tactics in Philadelphia in 2008. When the Bush Administration sued the lawbreakers for violating voting rights and civil rights laws, the defendants failed to respond. But when Holder came into office, he dropped the prosecution.
Far more disgraceful and ominous is the Operation Fast and Furious scandal, where Holder himself and even the President seem to be personally involved. In violation of federal law, the Administration allowed Mexican drug dealer gang operatives to purchase powerful guns in Arizona and walk them across the border untracked. The guns have since shown up at murder scenes, with American law enforcement officials among the dead.
Transparently, the entire operation was a plot to discredit gun sales in America, and provide a political foundation for authoritarian gun control laws squelching the constitutional right to keep and bear arms. As President Obama has said himself, “I don’t believe people should be able to own guns.” Operation Fast and Furious cannot be legally justified by such a plot, and so the federal officials involved in the operation have committed federal crimes.
But Holder will not prosecute anyone. Instead we will see unfold in a second term a constitutional crisis, as Congressional Committees seek to enforce subpoenas for documents relating to the scandal. But with no independent federal law enforcement, this is just the beginning of the lawlessness of a second term.
In the first term, federal laws were enacted granting the President extremely broad powers over the American economy and people. We see from the precedents above that Obama will stretch even these laws beyond their bounds. Dodd-Frank gave Obama authority to take over and nationalize major American companies, particularly in the financial community, but not limited to that. Obamacare gave Obama broad authority over the entire health care system, and the personal health care of each American. We can already see a whiff of the pending abuse of that in Obama’s use of the law to assault the Catholic Church.
Moreover, while even an overwhelmingly Democrat controlled Congress refused to pass cap and trade, Obama’s EPA is asserting the authority to implement it anyway. This will result in vastly increased energy costs, shutting down still more energy production and further cratering the economy. Don’t be fooled by the EPA’s recently issued moderate fracking regulations. Those serve as the foundation for reissued radical regulations in a second term that will shut down the fracking natural gas and oil booms that got past the Obama Administration extremists in the first term on state and private land. A second term EPA will assert authority over those state and private lands, and those that don’t like it can knock themselves out trying to sue the Administration.
As Steve McCann wrote at the American Thinker on May 8,
“The overwhelming majority of Americans do not understand that Obama’s first term was dedicated to putting in place executive power to enable him and the administration to fulfill the campaign promise of ‘transforming America’ in his second term regardless of which political party controls Congress. That is why his re-election team is virtually ignoring the plight of incumbent or prospective Democratic Party office holders. The most significant accomplishment of Obama’s first term is to make Congress irrelevant. Under the myopic and blindly loyal leadership of Harry Reid and Nancy Pelosi, the Democrats have succeeded in creating an imperial, and, in a second term, a potential dictatorial presidency.”
Indeed, Congress will not even be able to control Obama by controlling the budget and federal spending. As McCann adds,
“The most significant power Congress has is the control of the purse-strings as all spending must be approved by them. However, once re-elected, Barack Obama, as confirmed by his willingness to do or say anything and his unscrupulous re-election tactics, would not only threaten government shutdowns but would deliberately withhold payments to those dependent on government support as a means of intimidating and forcing a Republican controlled Congress to surrender to his demands, thus neutering their ability to control the administration through spending constraints.”
Recall that during the debt limit battle last fall Obama threatened to cut off Social Security benefits unless he got his way, even though he had no legal authority to do so. Expect more such abuse of the public in a second Obama term.
But the complete transformation of Barack Obama into Hugo Chavez will occur in a second term through judicial appointments. By the end of a second Obama term, a majority of federal judges will have been appointed by Obama. The ultimate effect of that has not been noticed because the barest conservative majority on the Supreme Court still rides herd over the lower courts.
Of course that slim majority will be gone in a second Obama term. Justice Scalia is today 76. Justice Kennedy will be 76 in July. Justice Thomas will be 65 in June, but as a black man he has a lower life expectancy. Even without a retirement, the whole Republic would hang on a heart attack or stroke among any one of these elderly men. For the Obama Left would then have majority control of the Court.
Note, however, that Justice Ginsburg, with health problems, is 79 today. Replacing her with a conservative justice would mean a solid conservative majority on the Court. Consequently, the Supreme Court, the independence of the judiciary, the rule of law, and ultimately our constitutional republic, are at stake in this election.