Reflections on Lawlessness in Government



The American system, famously, was established on the idea of the rule of law. Rule of law, as opposed to the rule of man, means that everyone is subject to the law, regardless of who they are, where they reside, how much money they make, or how much influence they might have. The principle is enshrined in the pediment of the Supreme Court building in Washington DC as “Equal Justice Under The Law.”

This principle was a reaction to the rule of man inherent in the monarchies of Europe symbolized, for American purposes, in George III of England who is frequently cast as the villain in the story of the American Revolution. The problem with monarchies and other autocratic or authoritarian governments is that they do not recognize Rule of Law and thus the outcome of disputes frequently depends on the whim of whoever is in the position of authority.   However, to be effective the American system must depend heavily on the law being a stable, reliable authority, enforced and administered by individuals dedicated to maintaining that reliability, rather than a whimsical thing that changes with the wind.

A fundamental of Rule of Law is that the constitutional protections embodied in the separation of powers between the branches of government are sacrosanct. Thus, if Congress refuses to act on an issue of presidential priority, or refuses to fund the action on an existing law then it is, according to Article one of the Constitution within its rights and the congressional will is not subject to question.

Unfortunately, over time, politicization of the legal process combined with willingness of both politicians and the judiciary to subvert the law to personal or ideological interests has progressed sufficiently that a presidential decree is now supposed to trump the will of Congress. The facts are simple. Congress has been pressed for approximately the last four years to pass immigration legislation in accord with presidential wishes. The prospects of this happening suddenly changed from dim to dead dark when the Republican party captured both legislative houses. Thus, Barack Obama has decided to take matters into his own hands. He issued an ultimatum; “do as I say or else.” The “or else” amounted to the issuance of an unconstitutional executive order bypassing Congress and the Rule of Law to grant legal status to aliens illegally within the national borders; likely in further disruption of the highly stressed economy and destruction of national culture.

Obama had for several years refused to take such action, declaring it beyond his authority. Other columnists have counted over twenty such instances. Now he has reversed course and decided that he has absolute authority to do whatever he wants. One attempt at excusing this is the declaration that past presidents have done the same. This is an outright fabrication.

When immigration policy came before Presidents Reagan, Bush and even Eisenhower they only wrote orders to implement laws passed by Congress. They did not act independently without congressional authority, AND, they met with congressional representatives to be certain that the orders were in concert with the laws as passed and with congressional intent. Obama claims that the recent vote directed the two political parties to work together. Then he acts by fiat, rather than negotiating a win-win result.

To make present matters worse, legislative opposition has so far failed to develop any sort of cogent response and appear very willing to take their most effective weapons off the table. These actions effectively allowing an illegal executive order will encourage further executive illegalities, and make both the executive and legislative branches of the federal government complicit in such lawlessness.

The terms of the pending order as of November 20, 2014 allow illegal aliens, purportedly here for 5 years, to remain under some newly developed legal status without basis in law and effectively on their own declaration. Aside from the potential for abuse, this places them in a position different from other illegal aliens, thus undermining “equal justice.” Some aliens are now more equal than others, as George Orwell would say. Inevitably, there will be future demands that the desires of the less equal groups be met, leading to chain illegality by officials seeking to maintain their image, rather than the law. Eventually, there will be demands for outright grants of citizenship, which will be considered a matter of “fairness.”

But more important, political parties were never supposed to act as checks on government overreach. Further, the founders understood that “factionalism” would be divisive and detrimental to The Republic and discouraged such parties. Where the focus should be is where the legitimate power resides. Both Houses of the legislature should be unanimously against illegal executive action; members of all parties in unison. Such response is sadly lacking as politics trumps Rule of Law.

Which leads to a question of what the nation is to do?   The answer, at least within the realm of reason and logic, is simple. When a government is unwilling to follow its own laws then it has placed itself outside the protection of that law. To expect the citizenry, and in the USA the states, to follow federal edicts when the feds do not do so is improper. It is the creation of a nation of men, not laws. It is the beginning of an aristocratic state not representative of the will of the people. It is a total repudiation of the Constitution and the American way of life.

If the Legislature is unwilling to do its job and rein in an out of control executive, then the people and the states must step into the breach. If nothing is done, sooner or later, there will be the establishment of a dictatorial executive branch. Obama’s behavior, ever since he entered the political scene shows quite clearly that this is the sort of government he favors; especially with him occupying the seat of ultimate power. If he believes he can get away with it he will continue to act unilaterally until he can assure himself that there will be no protest to the establishment of an outright dictatorship. And if he believes he can get away with it, he will do so.

As Mona Charen wrote in her column The Will to Power, Obama’s actions are a case of strong-arming. Perhaps she should have titled that column Triumph of the Will. There are those who assert that Obama’s actions are second Emancipation Proclamation. They could not be more wrong. Freeing people wrongfully enslaved was ethical, moral, and was within the war powers entrusted by Congress, to President Lincoln, at that time. Here we have a rogue president acting on his own motion not to do something ethical and moral, but to reward lawbreakers because he believes it is politically expedient for him and in like with his personal ideology. It is not emancipation, but for the American Republic it could be the beginning of the end.

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