Among the many memorable news-anecdotes related by the legendary Paul Harvey, my personal favorite was his report of a flag-lowering ceremony held at sunset by a kilted Scottish regiment. A sudden breeze sprang up during the ceremony, reported Mr. Harvey, “…thereby answering an age-old question. And the answer was: Nothing! Nothing at all! (Paul Harvey – Good Day!)”
Over the years I have repeated that wonderful bit of Harvey-humor any number of times. It always evokes laughter because of the context and because listeners knew it was a harmless bit of fun. But these days “Nothing at all” answers a far more serious question: namely, what can be done to stop a runaway president from doing whatever he wants?
I got some added insight on where things might be headed when I visited Al’s Coffee Shop last week. Big Al – both founder and proprietor – reviewed what Mr. Obama has done, probably plans to do, and could eventually do if the coast looks clear and no one is guarding the hen-house.
Everyone knows that Democrats received an apocalyptic “shellacking” in the November elections. Voters across the country clearly repudiated Democrat governance, electing ten new Republican representatives and eight new Republican senators –raising Republicans’ House majority to 247-188, and giving them a Senate majority of 54-46. (Two Independents caucus with Democrats’ 44 senators.) Republicans also hold a 31-18 advantage in state-governorships. They control 31 state legislatures to Democrats’ 11, and 8 states have divided legislatures.
Brushing aside all this dreary news, President Obama saw a unique opportunity. Noting that only 1/3 of American voters went to the polls, Mr. Obama went mystical by declaring that he was listening to the voices of the “silent majority” who did not vote. He vowed to take his own line and move ahead, unilaterally, with actions he deemed necessary to “help the country.”
Unsure of what to do with this bizarre interpretation of the election’s results, most reporters and news organs simply glossed over it as they pursued the next hot item on Kim Kardashian or Taylor Swift. But POTUS followed through. He came out swinging with a radical executive order that canceled the deportation of some 5 million illegal aliens and created a path for them to gain work permits, driving licenses, and other instruments of legal residency.
Republicans immediately rushed to the microphones to denounce and deplore the president’s “unlawful” action, declaring that he lacked authority to modify existing law or make new law on immigration. But Mr. Obama and his liege men calmly explained that he was merely exercising “prosecutorial discretion” by declining to deport these illegals – most of which had been brought into the country as children. Only a few sharp-eyed reporters and politicians noticed that granting work permits and driving licenses constituted a clear executive-overreach that could not possibly fall under “prosecutorial discretion.”
In their fall campaigns Republicans had promised to “defund” the part of Homeland Security’s budget that would bankroll Mr. Obama’s new executive order, should he issue it. Indeed, the GOP-controlled House quickly passed a bill to accomplish this. But the Senate found it could not do the same, as a determined cadre of Democrats filibustered the bill to prevent a vote. Some Republican senators urged Senate Leader Mitch McConnell to adopt the House bill via the legislative device of “reconciliation” – a procedure that cannot be prevented by a filibuster – but the leader declined. Thus, the bill died, and funding for the president’s “amnesty” order was approved through September 30. The audacious president had won the first round.
Coffee-shop Al rehearsed all this by way of predicting that Mr. Obama would issue executive orders on other controversial topics. One such item – already being bandied about – could modify the deduction structure for corporate income taxes. Insiders have spread the word that the president plans to close certain loopholes by ordering the IRS to change its rules. If he does so, another round of speeches and TV-interviews can be expected – followed by a House bill reversing the president’s order. And, as the night follows day, a solid Democratic bloc will almost certainly filibuster the Senate’s bill. Unless Leader McConnell agrees to use reconciliation or change the Senate’s filibuster rule, this bill will also die. And even if it both houses pass it and send it to the president, he would quickly veto it, as he did the Keystone Pipeline bill, last month.
As things stand, no Congressional bill designed to reverse a presidential order is likely to surmount a veto. Mr. Obama can stop any inconvenient legislation with complete impunity. Indeed, he can ignore it, if he chooses. He holds the high cards in this game because he is the boss of all the federal agencies. If government employees want to keep their jobs, they have to do what the president orders – unless he orders something illegal.
But telling a president that his order is unlawful takes more moxie than most ordinary federal Joes or Jills have. It could take years for the courts to sort out any particular issue. Meanwhile, the poor schmuck who waved the red flag has lost his job, his income, his house, his family, and maybe his life. How many civil serpents will risk all that just to defend the Constitution? It’s much easier (and safer) to go with the flow. Besides that, each controversial executive order will have its own guaranteed faction of public support. The president will choose his ground very carefully on these matters.
This week, for the first time, I heard a public figure suggest that Mr. Obama might go for the
“brass ring” – i.e., a continuation in office beyond his two terms – if he feels powerful (and untouchable) enough. Al mentioned that scary possibility, too. “Who could stop him?” he asked. “Who would even try? And what tools could be used? There’s nothing! Nothing at all!” he exclaimed, echoing Paul Harvey’s famous quip.
Indeed, the signs and portents do not look encouraging. Fearful of getting their fingers burned – as they did in 1998 – Republicans have already ruled out the one remedy the Constitution prescribes for dealing with a lawless president. Bringing formal charges against a president in the House of Representatives – a process the Constitution calls Impeachment – is an extremely contentious and partisan proceeding. The trial conducted by the Senate is even more so.
One of the two charges on which Bill Clinton was tried by the 105th Congress was jury-tampering in the context of a trial in which he was the defendant – an extremely serious matter, especially for a lawyer, and an absolutely intolerable offense for a president. The charge was clearly true, but not a single Democrat in the Senate voted to convict Mr. Clinton for an offense that would have sent any ordinary person to jail. The charge was not political, nor was it about sex (as Mr. Clinton’s acolytes claimed). But the president was untouchable. Had he shot the Bishop of the Washington Cathedral, in public view during services, I doubt if he could have been convicted.
The remedy of Congressional impeachment and trial – attempted only twice in our 228-year history – is essentially useless. It is a Constitutional bugbear, not a realistic remedy. My estimate is that the Founders meant this to be so. Those wise men knew all about the violent history of the English Crown, and I believe they wanted to make sure that any removal of the president of our republic would be exceedingly difficult to accomplish.
John Adams wrote: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” He and the other founders expected the American people to choose leaders guided by a strongly internalized moral code that would keep them clear of wrongdoing and well within the law’s boundaries.
Moreover, as President Adams’ words indicate, the founders believed that the People – not just their leaders – must be moral people as well. Should that prove to be no longer true, the Constitution’s prescriptions for dealing with corrupt leaders will be found to be “wholly inadequate” – as John Adams put it. No lawful remedy can contend with a leader who refuses to respect the law. Soon – perhaps already – the American people might comprehend that bitter truth in more ways than they ever thought possible. We live in dangerous times.