woody_zimmerman_118_2007Lawyers, politicians and pundits are still debating Mr. Obama’s declaration that his government will no longer round up illegal immigrants who were brought here as children – provided they have broken no American laws and are either working, going to school, or serving in the U. S. military. The debate will probably continue for some time.

However sensible and compassionate this move may seem – and I share some sympathy for it – it’s clear that the president lacks constitutional authority to take this action. In his inauguration oath the president promises to “…faithfully execute the office of President of the United States, and … preserve, protect, and defend the Constitution of the United States.” (This oath is taken directly from Article II, Section 1 of the Constitution itself.) Unquestionably, the Oath implies a presidential responsibility to enforce all federal laws – not just laws that the president happens to agree with.

Nowhere does the Constitution mention the president’s authority to modify law. Instead, Article I, Section 1 states: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

This past week featured yet another Obama end-run around the Congress and the Constitution, when Mr. Obama released a “directive” that would essentially remove the work requirement from landmark 1996 welfare-reform legislation that was signed into law by President Clinton. Obviously Mr. Obama’s action was meant to excite his “welfare constituency,” just as the backdoor amnesty directive was intended to please his immigrant constituency (both legal and illegal). Recently, The Washington Times observed that Mr. Obama is buying his re-election one interest-group at a time.

Mr. Obama and his advisors believe they have found a “legal” way for his Secretary of Health and Human Services to waive the work standards that constitute the heart of the welfare-reform law. In their article, “Obama Guts Welfare Reform.” (http://www.rightsidenews.com/2012071516650/us/politics-and-economics/obama-guts-welfare-reform.html ) Robert Rector and Kiki Bradley have furnished a thorough explanation of Mr. Obama’s proposed legal basis for modifying the law’s work-requirements.

The details of Mr. Obama’s legal maneuverings are complex. To help my readers understand them, I have extracted the following passages from Rector and Bradley’s article:

Welfare reform [of 1996] replaced the old Aid to Families with Dependent Children with a new program, Temporary Assistance for Needy Families (TANF). The underlying concept of welfare reform was that able-bodied adults should be required to work or prepare for work as a condition of receiving welfare aid…

…the Obama Administration issued a new directive stating that the traditional TANF work requirements can be waived or overridden by a legal device called the section 1115 waiver authority under the Social Security law (42 U.S.C. 1315).

Section 1115 states that ‘the Secretary may waive compliance with any of the requirements’ of specified parts of various laws. But this is not an open-ended authority: Any provision of law that can be waived under section 1115 must be listed in section 1115 itself. The work provisions of the TANF program are contained in section 407 (entitled, appropriately, “mandatory work requirements”). ...this section, as well as most other TANF requirements, are deliberately not listed in section 1115; they are not waiveable.

In establishing TANF, Congress deliberately exempted or shielded nearly all of the TANF program from the section 1115 waiver authority. They did not want the law to be rewritten at the whim of Health and Human Services (HHS) bureaucrats. Of the roughly 35 sections of the TANF law, only one is listed as waiveable under section 1115. This is section 402.

Section 402 describes state plans – reports that state governments must file to HHS describing the actions they will undertake to comply with the many requirements established in the other sections of the TANF law. The authority to waive section 402 provides the option to waive state reporting requirements only, not to overturn core requirements of the TANF program contained in the other sections of the law.

The new Obama dictate asserts that because the work requirements, established in section 407, are mentioned as an item that state governments must report about in section 402, all the work requirements can be waived. This removes the core of the TANF program; TANF becomes a blank slate that HHS bureaucrats and liberal state bureaucrats can rewrite at will…

Is your head spinning yet? It’s meant to be. “The most transparent administration in history” has deliberately fashioned a legal strategy of such eye-crossing complexity that the average voter and probably the average congressman will be thoroughly confused. Opinion on the directive will divide roughly along party lines, with Democrats generally accepting the action and Republicans rejecting it.

Naturally, some states and political groups will sue in federal courts to stop this new Obama-directive. It might take a year or more for those suits to wend their way through the court system – possibly culminating in another dramatic Supreme Court case. In the end, Mr. Obama’s action might be struck down as an unconstitutional overreach. Or perhaps it will actually be upheld – although it is hard for this writer to see how that could be.

But Mr. Obama will not care about the final outcome of this manufactured legal tussle. He will have made the desired point to his followers in the “welfare community.” As always, his entire objective with this constitutional end-run is twofold: (1) motivate a key constituency to flock to the polls to vote him a second term; and (2) create a diversion to draw public discourse and media attention away from the his wretched stewardship of the economy, including the dismal economic growth and depression-level unemployment.

The danger in this kind of action, of course, is that the courts have shown themselves to be extremely unreliable. This includes the Supreme Court, as we saw a few weeks ago in the Obamacare case. Every pundit and commentator I saw or heard was certain the Court would strike down either the entire law or at least the “individual mandate,” which required citizens to engage in commerce – something not previously legislated. Yet the Court went in an unanticipated direction – ruling out the Commerce Clause to justify the mandate, yet saving the legislation on the basis of Congress’s taxation powers. Thoughtful people certainly realize that if the Court could do these legal gymnastics here, they could do them anywhere – including in cases of even greater moment.

What might those cases of greater moment be? Your guess is as good as mine. But since so many of Mr. Obama’s end-runs have been election-related, how about this one: suspending the presidential election, or declaring it invalid after the fact. (Yes, my membership in the Grassy Knoll Conspiracy Society is fully paid-up. In fact, it’s a lifetime membership.)

The “oh, that’s ridiculous” response is common when I suggest any of this in polite company. Indeed, it seems impossible that a sitting president could consider such actions, and for any previous president I would agree entirely. But this is not a normal presidency, and this is a president unlike any previous ones.

My personal thesis is that Mr. Obama’s previous end-runs around Congress, the courts, and the Constitution have all been test-cases to gauge the response from the public and from the other arms of government. Take the case of Interior Secretary Salazar’s 2010 ban on drilling in the Gulf of Mexico, for instance. A New Orleans judge struck it down as “overly broad.” But Secretary Salazar immediately instituted a second ban that differed little from the first. This caused the judge to hold HHS and Mr. Salazar “in contempt.” But this was no big deal in the Obama-friendly media. Later the ban was rescinded by Mr. Salazar, once he (and Mr. Obama) saw that the judge had no real power over HHS.

What did the New Orleans court do besides issue contempt-rulings and statements to the media? Answer: nah-thing (as DeNiro would say). The same question and answer applies to the backdoor amnesty of the children of illegal aliens. What did the Congress do? Republicans made speeches and sputtered. Democrats admired the president’s “leadership” on this difficult issue, delicately avoiding the matter of Congress’s exclusive constitutional prerogative to modify immigration law. The Democrats who are praising Mr. Obama’s decisive action would be shouting from the housetops, had a Republican president declared abortion illegal, etc.

The courts can do nothing to the Executive Branch or to the president himself. He is untouchable, except by the Congress’s impeachment and conviction power. Could he be impeached, convicted and removed from office for cancelling the election or declaring it invalid? Theoretically, perhaps. Would Congress do it? Almost certainly not. President Clinton was impeached on two strong articles – one of them related to evidence tampering and obstruction of justice in the Paula Jones case. Not even all Republican senators voted to convict him on a matter that would have sent any ordinary citizen to jail. Impeachment is a phantom power in today’s super-polarized political climate. No president is likely to be removed by it.

Ask yourself this question: What would happen if the president arrested the Congress in the midst of an impeachment deliberation? Would Congress call for the FBI? Or the Army? Who bosses these outfits, anyway? Right, it’s the president, himself.

Finally, is it just possible that President Obama was poised to overrule the Supreme Court by presidential fiat, had the decision on Obamacare gone against him? I think it very likely that the various “test cases” noted above were posed as preparation for this major event. Some of the mystery attached to Chief Justice Roberts’ apparent flip-flop on the case could be explained by the possibility that he learned of Mr. Obama’s plan and changed his position on Obamacare in order to avert a major constitutional crisis. We might never know, but anything is possible in this political environment.

It’s easy to see that President Obama’s confidence in his invincibility is growing. He sees himself as untouchable, no matter what he does. This makes his next moves totally unpredictable. It’s a very dangerous place for the country to be.