Wednesday, January 29, 2014

Obama's State of the Union: "The President that Richard Nixon Always Wanted to Be"

 A few reactions to the State of the Union from the perspective of the law.  First off some of the key legal excerpts from the speech are here on Professor Josh Blackman’s blog. 

More than the legal excerpts, this quote from Dr. John Eastman, Professor of Law at Chapman University, on the State of the Union should scare all concerened about the rule of law:
"I'm up to 10 claims of unilateral executive action, from increasing the minimum wage to setting CAFÉ standards for trucks, to expanding the earned income credit. The President's speech was progressivism on show.  Government is good, so more government must be better.  And the constitution's checks on government power are, in the progressives' view, just so many impediments to good government that they should be dispensed with.  This President tonight, time and time and time again, announced his willingness to end run Congress and the Constitution in order to advance his agenda."

Professor Eastman is not alone in thinking this way.  As another liberal law professor Jonathan Turley said in another context

"President Obama meets every definition of an imperial presidency. He is the president that Richard Nixon always wanted to be.

Rule of law doesn't simply mean that society has laws; dictatorships are often characterized by an abundance of laws. Rather, rule of law means that we are a nation ruled by laws, not men. That no one—and especially not the president—is above the law. For that reason, the U.S. Constitution imposes on every president the express duty to "take Care that the Laws be faithfully executed."

Yet rather than honor this duty, President Obama has openly defied it by repeatedly suspending, delaying and waiving portions of the laws he is charged to enforce. When Mr. Obama disagreed with federal immigration laws, he instructed the Justice Department to cease enforcing the laws. He did the same thing with federal welfare law, drug laws and the federal Defense of Marriage Act.

On many of those policy issues, reasonable minds can disagree. Mr. Obama may be right that some of those laws should be changed. But the typical way to voice that policy disagreement, for the preceding 43 presidents, has been to work with Congress to change the law. If the president cannot persuade Congress, then the next step is to take the case to the American people. As President Reagan put it: "If you can't make them see the light, make them feel the heat" of electoral accountability.

It is also reasonable to say that everyone should be concerned about the means the President is using to accomplish his agenda.  

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