An extraordinary thing happened in Washington, D.C., this week. Appearing before a House Judiciary subcommittee, several constitutional scholars forthrightly and unmistakably outlined the leading danger to the survival of our constitutional republic: the usurpation of powers by President Barack Hussein Obama.
This wasn’t just me, a non-lawyer, perplexed by how out-of-whack constitutional checks and balances have become, and, in particular, how enfeebled the legislative branch is. This wasn’t even Mark Levin, a constitutional lawyer himself, explaining to his radio audience that we are living in “post-constitutional” times.
This was, for starters, Jonathan Turley, a liberal Georgetown law professor, who, noting that he once voted for Obama, nonetheless warned America that the concentration of executive branch powers, having accelerated under George W. Bush, is approaching a crisis under Obama. “The problem with what the president is doing is that he’s not simply posing a danger to the constitutional system,” Turley said. “He’s becoming the very danger the Constitution was designed to avoid.”
Turley was referring to the imperial-style powers Obama’s executive branch has amassed to the detriment of the Constitution’s system of checks and balances. When functional, checks and balances prevent any one branch of government (executive, legislative, judiciary) from becoming more powerful than any other. Today, that system is broken.
“Each branch is given the tools to defend itself, and the Framers assumed that they would have the ambition and institutional self-interest to use them,” Turley stated in written testimony. “That assumption is now being put to the test as many members remain silent in the face of open executive encroachment by the executive branch.”
Nicholas Rosenkranz, a constitutional law professor at Georgetown also affiliated with the libertarian Cato Institute, cogently laid out several examples of executive branch encroachment. The first was suspending the “employer mandate” in Obamacare via presidential decree (via blog post!) at the White House website; the second was enforcing by executive order the DREAM Act, despite its (repeated) failure to pass in Congress and become the law of the land; the third was presiding over an IRS that has discriminated against and punished political opponents in the tea party.