Thursday, August 20, 2009

President Obama and Constitutional Law

Lately a lot of media focus has been on President Obama's policies. There is constant talk regarding the policies he endorses, or does not endorse and whether or not he will push his "agenda" through Congress effectively, as past presidents have done (or failed to do). In the past some presidents have presented whole pieces of legislation (pre-written) to Congress for their vote. But that does not seem to be the case with President Obama. As has been noted by both critics and supporters alike President Obama tends to talk about broad political issues but rarely about specifics.

This approach to presidential leadership has been noticed and has been alternately ridiculed by the opposing side and questioned by those of his own party. Some liberal commentators have wondered why the President does not take a more active role in writing legislation, and why he seems to leave it all up to Congress. Again, the President's opponents use this as a basis for political attacks claiming that President Obama simply left the stimulus package, the budget, cap and trade and now health reform up to Congress. This has certainly put Congress in the spotlight (or under the microscope as the case may be), but it has opened President Obama up to accusations of incompetence, inexperience and political weakness. Those that support him (as far as I can tell) offer no explanation but issue calls for more specific leadership from the White House.

In certain cases it goes beyond legislation and spills over into other political issues. Some issues on which President Obama is receiving criticism are areas where he made campaign promises and has not as yet acted on them. When he first became president he was widely applauded by liberals for issuing an executive order to close the prison at Guantanamo Bay, albeit some still criticised him for giving the military a whole year before it had to be closed. Some of his most ardent supporters were expecting him to issue sweeping change to the American system in a very short amount of time, whether through Congressional action or executive order it did not matter. Those same supporters who wanted him to close Guantanamo Bay probably fully expected him to continue issuing executive orders to repeal the Don't ask, Don't Tell policy for the military or to repeal the Defence of Marriage Act. When these executive orders did not materialize some of President Obama's liberal supporters began to cry foul and insist that he make good on his campaign promises.

For that group of supporters they felt betrayed and began to criticise President Obama for failing to listen to their demands. A few of the more prudent among them noted that he already has a lot to deal with and he didn't need another issue to try to push through which would cost him a lot more of his already precious political capitol. This pragmatic view seems to be the prevailing view among those that advocate for these issues. But just to test the waters, so to speak, they have already brought these issues (Don't ask, Don't tell, and DOMA) to court but were surprised when President Obama came out in defence of these issues. They were probably expecting him either remain neutral on the issues for the time being or to give some indication that he would push for their removal. But instead he (or his attorney generals) have defended them and President Obama insisted that if they are to be removed that it must be through an act of Congress.

This assertion came as some what of a surprise to many liberals, that the President of the United States would not change policy through executive order, nor would he give to Congress pre-written legislation to pass. Some might be asking, "What went wrong?"

Now I will enter the realm of speculation. This is the realm of trying to figure out the personal motivations behind the President's actions, which because I do not know him personally I can not give an accurate assessment of. But I can speculate and throw out some ideas that just might be right. As I have mentioned President Obama's critics (and some supporters) insist that he is doing this because of inexperience or out of political expediency, but I will present another option that may not be obvious, but may be correct. The reason why President Obama has taken this approach towards Congress and also in defending DOMA and the Don't ask, Don't tell policy, may be because he has actually read the Constitution. Novel idea.

You see there is are two minor details here that I want to point out. The first minor detail is that the Constitution clearly states that "All legislative powers herein granted shall be vested in a Congress of the United States" (Article I Section 1). By definition, legislative power is the power to make and enact laws, which in turn determine public policy. The second minor detail is that the job of the President is to "take care that the laws be faithfully executed" (Article II Section 3). To put this in simple High School Government Class terms, Congress writes, votes on and passes the laws. The President makes sure the laws passed by Congress are kept. As many high school government teachers like to point out, the President does not have the power to write the laws. That power is explicitly reserved to the Legislative Branch. Also as the like to point out that Presidents get around this "minor issue" by giving someone in Congress their pre-written bill and then that Congressman presents it as his own, even if everyone "knows" that it was actually the President who wrote it (maybe not him literally, but you know what I mean). Again as high school government teachers are so fond of pointing out, this violates the spirit of the Constitution and the principle of separation of powers, but nobody really listens to high school teachers anyway.

Now it is well know that President Obama was a professor of Constitutional Law at the University of Chicago (senior lecturer, whatever), but the point is that he had plenty of opportunity to deal with constitutional issues. And somewhere in there he may have actually read the Constitution (Shocker! I know) and somewhere in there he may have realized that it is the duty of the Legislative Branch to write, pass and enact the laws, and not the duty of the Executive Branch. Which means that in his personal approach to being President he has decided to actually live up to both the letter and spirit of the Constitution (at least on this issue) and let the Legislative Branch do what it is supposed to do and let the Executive Branch do what it is supposed to do. This may come as a shock to politicians on both sides of the aisle, but based on what President Obama has done so far while in office this appears to be how he is approaching being president.

This may come as great disappointment to many radical liberals because up until now their main tactic for advancing their agenda has included a blatant disregard for Constitutional Law. They have insisted that courts (the Judicial Branch) enact laws (a Legislative power) from the bench (the seat of Judicial Power), or they have insisted that Congress pass laws without regard for the enumerated Legislative powers. And now that radical liberals have a dear friend in the White House they insist that he use (abuse) his office to enact legislation to their personal benefit. But much to their chagrin he may actually respect the Constitution and won't abuse his powers. I find it particularly revealing about radical liberals that when they are confronted by one of their own, and one who at least says he supports their causes, who stands by the Constitution, and the rule of law, they vilify him and criticize him for not fulfilling his promises to them, even if that means blatantly disregarding the Constitution.

Again I must state that this is all speculation because I do not know the President personally, but it does seem to fit the facts and reflect how the President appears to run his administration. What do you think?