Vol 1 No 22 – Faithfully Executing the Law

Vol 1 No 22 – Faithfully Executing the Law

Today, most Americans think of the Executive Branch as having the greatest power of any of the three branches — and the Chief Executive, i.e., the President, as the most powerful person in the government.  The Founders saw it differently; they saw the Congress as the most powerful branch – indeed situated as the “center of gravity” of the government.  The Legislative Branch made the law, the Executive only implemented it, while the Judiciary (the “least dangerous branch?”) merely interpreted it.  The Legislative Branch can “fire” the President (through impeachment), control political appointments (through the Senate’s consent) and limit the jurisdiction of the Judiciary (Article 3, Section 2); so who is the most powerful Branch?  This impression of relative power is further borne out by noting that Article One of the Constitution covering the Legislative Branch is considerably longer and more detailed than Articles Two (Executive) or Three (Judiciary).  While the powers of Congress are spelled out in a lengthy section of Article One (Section 8), the powers of the President in Article Two are, by comparison, quite sparse.

Many feel the most important power and responsibility of the President lies not in his responsibility as Commander-in-Chief of the Armed Forces, which was only expected to be operative during times of war, but rather lies in his charge, found in Section 3, Clause 5, to “take care that the laws be faithfully executed.” In his 1833 “Commentaries on the Constitution,” Justice Joseph Story called this duty of the President “the great object of the executive department,” and said that the lack of this responsibility would render the office “utterly worthless … for the happiness, … good order, or safety of the people.”

Recently, the Obama Administration essentially announced that it was not going to “take care” that the Affordable Care Act, aka “Obamacare” would be “faithfully executed.”  Specifically, businesses were going to be excused from reporting their compliance with the mandate that they provide medical insurance coverage to their employees.  This “business mandate” was scheduled to “kick-in” in 2014 and was expected to produce a record number of layoffs, just prior to the 2014 elections – which would of course be an embarrassment to all Democrats facing re-election who voted for the bill.  Now, magically, that embarrassment will be avoided until after the election.  Hmmm.

This was not, of course, the first time the Obama Administration had failed to execute the will of the people – as expressed through their representatives in Congress.  Provisions of immigration law have been similarly and purposefully ignored, as have certain welfare requirements.

Now, to be fair, we live under a government where selective enforcement of laws is expected.  With more than 4500 federal crimes on the books, and the likelihood that each of us breaks at least one of those laws each day, selective enforcement is often a welcome sign of sanity; but the selective enforcement of a legislative provision affecting millions of people – which Obama himself fought long and hard for, we might add – is an egregious violation of the will of the people.  The President also has the power, as a co-equal branch of the government, to not execute a law or provision of law he feels is clearly unconstitutional.  He outlines his reservations in what are called “signing statements” as he signs the bill into law.  Unfortunately, no such signing statement accompanied Obama’s signing the Affordable Care Act into law.

In 1688, Britain’s King James II was forced to flee his throne as a result of “The Glorious Revolution,” in part for claiming that he had the power to ignore an act of Parliament, specifically the Test Act of 1673.  William and Mary were only allowed to assume the vacated throne after agreeing to the English Bill of Rights of 1689, which stated “that the pretended power of dispensing with the laws, or the execution of the law by regal authority, as it hath been assumed and exercised of late, is illegal.”

In 1776, a “long train of abuses” by King George III and his Parliament forced the thirteen united colonies to separate from Britain.  In a 1795 letter to Gouverneur Morris, George Washington, said: “The executive branch of this government never has, nor will suffer, while I preside, any improper conduct of its officers to escape with impunity.”  Oh, for the return of a President like Washington!

Is it time we separated ourselves from this government, or perhaps separate the perpetrators of this travesty from their jobs through the people’s power of impeachment?  P.s., that’s really how the delegate from Pennsylvania, Mr. Morris, spelled his name.