This month Congressman Trey Gowdy of South Carolina has been making headlines. Congressman Gowdy sponsored HR 4138, the ‘‘Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law Act of 2014’’ or the ‘‘ENFORCE the Law Act of 2014.’’
The ENFORCE the Law Act of 2014 easily passed in the House. Introduction to passage took 8 days.
A broad simplified summation is that the Bill allows either Chamber to bring the President to Civil Court if Members believe that the President is not faithfully executing the law.
The full report and dissents can be read here:
Some will argue Obama’s phone and pen statement as an example of the necessity for such legislation. One can counter with a straight numbers argument, and the American Presidency Project at the University of California at Santa Barbara is a great resource.
Only President George H.W. Bush in his single term issued fewer Executive Orders than Barack Obama to this point in Obama’s second term. Bush issued 166 to Obama’s current 168. The only other Presidents who have served in office since the year 1900 to issue fewer than 200 Executive Orders have been William McKinley (which includes his initial term in the 19th century) and Gerald Ford in his abbreviated time in office following the resignation of Richard Nixon.
Christopher Ingraham created a graphic illustrating every President here.
Personally, I find arguments based solely on these numbers to be lacking regardless of what one is attempting to “prove.” The reason for my position is that all Executive Orders are not equal. Many go unnoticed by practically everyone although the order could not be labeled as unimportant. Some things which actually had little impact upon anything received a lot of publicity.
The Nisei in WWII
For example how many people today are aware that an Executive Order, Number 9066, not a law passed by Congress, forced the relocation of Americans of Japanese ancestry living on the West Coast into the relocation camps?
[To learn more of Nisei, the internment camps, and the individuals who fought heroically for the United States during the Second World War while family members had been relocated, please see the Japanese American Veterans Website along with a number of resources available from the United States Army Center of Military History. The results of a search for the term “Nisei” is available here.]
For information concerning the content of specific Executive Orders, a good starting point for the Post World War II period is the Disposition Tables Index from the Federal Register at the National Archives.
House Majority Perspective
Opposition asserts that Barack Obama has gone beyond the issuance of Executive Orders which necessitates legislation such as Congressman Gowdy’s ENFORCE Act. House Majority leader Eric Cantor of Virginia expressed his feelings.
“This Administration’s blatant disregard for the rule of law has not been limited to just a few instances. From gutting welfare reform and No Child Left Behind requirements, to refusing to enforce immigration and drug laws, the President’s dangerous search for expanded powers appears to be endless. Whether one believes in the merit of the end goal or not, this is not how the executive branch was intended by our Founders to act.”
Obviously Congressman Cantor is referencing Article II of the Constitution of the United States of America.
The Presidential oath of office:
“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
And from Section 3 of Article II:
“…he shall take care that the laws be faithfully executed…”
Is it ideology or opinion that changed among “conservatives”
I am neither questioning the words written in the Constitution nor any interpretation of those words. In 2001, Todd Gaziano, former Director of the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation (he held this position at the time he wrote this article), and current Vice President and Chief Legal Officer at Quality Health Ideas and Vice President for Research and Education at Accountable Care Associates, examined the powers of the President in the Foundations Legal Memorandum #2 “The Use and Abuse of Executive Orders and Other Presidential Directives.”
Within this report Mr. Gaziano wrote:
“The President has the sole constitutional obligation to “take care that the laws be faithfully executed,” (17) and this grants him broad discretion over federal law enforcement decisions. He has not only the power, but also the responsibility to see that the Constitution and laws are interpreted correctly. (18) In addition, the President has absolute prosecutorial discretion in declining to bring criminal indictments. As in the exercise of any other constitutional power, one may argue that a particular President is “abusing his discretion,” but even in such a case, he cannot be compelled to prosecute any criminal charges.
17. U.S. Const., Art. II, § 3.
18. Myers v. United States, 272 U.S. 52, 164 (1926); Public Citizen v. Burke, 843 F.2d 1473, 1477 (D.C. Cir. 1988) (“[T]he incumbent President, by virtue of Article II’s command that he take care that the laws be faithfully executed, quite legitimately guides his subordinates’ interpretation of statutes.”). See, generally, Geoffrey P. Miller, The Unitary Executive in a Unified Theory of Constitutional Law: The Problem of Interpretation, 15 Cardozo L. Rev. 201 (1993).
There is no confusion that the President has the responsibility to make sure that the laws of the United States of America are faithfully executed.
Agree or disagree with a law, if it is in fact a law the President must do his duty.
It appears, however, that the desire of the current House is to have the power to decide exactly what they are asserting President Obama is doing and that is selective enforcement.
Immigration is one of the huge issues. Technically I should write that illegal immigration is a huge issue.
I do not claim any expertise regarding immigration as either a Professor of Political History or being reared in the Hungarian Settlement in Livingston Parish, Louisiana. I’ve never seen any of the US land borders as I’ve only seen the Gulf and oceans. Border security is obviously a component, but it is not the only component. I have known people who later discovered that their Visa had expired. Some of these people were laborers back from my days on strawberry farms. Others were highly regarded academics with credentials as good as any within their fields. There are other means, both intentional and unintentional, for being an “illegal” as well. I’m only suggesting that a quick fix, one size fits all, type of solution will not actually solve all the components as they can be diametrically opposed.
In reference to President Obama, the GOP claims that he is soft on immigration. On the other hand, some groups claim that the current enforcement is the most stringent in recent times.
That’s an issue that others can debate. What’s sad, however, is that for many the issue is not illegal immigration, but who the individual happens to be.
For example FOX ran this article, “Team Obama wins fight to have Christian home-school family deported” about a German family seeking asylum in the United States in order to home school their children.
Some basics on asylum law can be found here:
The Universal Declaration of Human Rights can be found here:
Several tried making the argument to me that this situation concerned Christianity and home schooling. I assert that it involves the complexities and ambiguities within our immigration code. Should the President personally review each case and make a thumbs up or thumbs down decision of every case? If mathematically possible, would we want that?
With this family nothing I read cited the reason behind the change in decision. I can only guess that it involved the incorporation of CFR Title 8 § Sec. 208.16 to become applicable to the family’s situation.
My point is that if you want strict adherence to the laws as written and as they have been interpreted then this family became “illegal” just as any other individual without current legal standing. If someone wants to employ the “good” people versus “bad” people argument, please define “good” and “bad” to me. If religion is the determining factor then what set of beliefs? If hard work is a factor, I’ve had individual international students outwork everyone in courses. I had a colleague who taught his courses and spent the rest of the day and night either in his lab or collecting specimens for his research. Seriously, he once lived on campus for 3 weeks. He had a shower in the lab and cooked with a Bunsen burner and microwave. His son, a student living in the dorms, picked up the laundry every Saturday morning and delivered them back to his Dad Saturday night with groceries for the week. As a teen, I saw a migrant picker who was the fastest, most efficient, and had greater endurance than any two of us high school boys combined, and we busted our tails out in the field to earn the respect of my Grandfather’s generation.
What I see with the ENFORCE Act is that instead of the President having the discretion, the House wants the discretion as to who the law should apply. The strange thing is, however, that this particular struggle regardless of whether one agrees with the GOP or Obama has absolutely zero reason to be an issue.
Areas such as immigration, the tax code, and health care need to be addressed. If addressed honestly, you, me, your neighbor, my neighbor, those folk over yonder, those way over yonder, and so on are going to be upset, angry, and pissed off about something. We’re also going to be thrilled with other things, but the focus will be on the negatives and not the positives.
Congress will not take up these matters in a legitimate manner. To some it might sound nice to repeal every word of Obamacare, but those people generally cannot tell you specifically what they want repealed. Admittedly the old system worked great. It worked great until you got a raw deal through their fault, your fault, my fault, nobody’s fault. Then that system sucked. Prior GOP plans with individual mandates were acceptable to the GOP but not to the Democrats. If someone favors repeal, shouldn’t any delays of implementation be positive as aspects are not going into effect and as a result you have additional time to develop and promote an alternative?
Honestly ACA did pass because of legislative procedural maneuvers. The no GOP votes are a shallow argument, however, in that throughout the law there are a number of amendments and riders that were GOP initiatives. Senator Chuck Grassley of Iowa introduced some which have since made headlines.
Think about the last few Congresses.
They have found the time to vote how many times to repeal Obamacare? They have found the time to pass emergency legislation to prevent any possibilities of their flights from either Dulles or Reagan not being delayed. They can hold what seem to be nonstop investigative hearings concerning issues where all information needed had previously been hand delivered to Congress.
Maybe people have questions about Fast and Furious, but thanks to Tiahrt restricting law enforcement those same amendments apply to Congress.
Benghazi, does it really matter what anyone said afterwards? Disagree with me there, but have you seen a single point being made about how to prevent a similar loss of life? Numbers are not even within the same ballpark as with losses from attacks during previous administrations but again the numbers mean little to me. If a casualty was someone you know, that casualty means more than multiple casualties when considered on a personal level.
I’m not even offering an opinion about what is happening in the Ukraine and with Russia. Still, Congress did not postpone their recess until the body decided about what if any action the US should take.
Likewise, Congress apparently does not have the time to bring various jobs bills to the Floors.
Who are they representing?
Consider that Senator Ted Cruz can find the time to defend 2 wealthy individuals on the Senate Floor and before the microphones. He can find time to read Green Eggs and Ham at the taxpayers’ expense. Yet, the fault for everything is with the President and any and every other person who disagrees or questions his agenda? He is a “hero” by wasting time with his rhetoric and views to prevent the Senate from having time to maybe bring forth ideas that might help the economy and people like you and me?
President Obama’s record in the Senate wasn’t the greatest. In past generations a man with his level of experience would not have been considered for the Oval Office. He would need a stronger record representing constituents. [If you want please throw the Abraham Lincoln story in rebuttal. In doing so, please consider the quest to receive the nomination from his Party for that 1860 election. One can forget Lincoln’s prior political losses because in order to push William Seward out of receiving the Republican nomination, Lincoln obviously learned how to master the political process. Like or dislike Lincoln, he obviously had no fear of opposition by appointing Seward to his Cabinet. No disrespect to Obama, but the only comparable President to Lincoln is George Washington if you consider what each had to overcome during their respective terms]. Senator Cruz has accomplished far less in the Senate than Senator Obama accomplished, and Cruz has essentially made the Senate into his campaign and fund raising platform and not a body to represent the 50 states and the citizens of each state.
Ted Cruz is not alone in the lack of actual achievements and failure to represent all citizens. Many of the newcomers to both the House and Senate can make great soundbites for the microphones and stir up issues. I’ve yet to see any legitimate attempts to fix problems that practically everyone can see. The same is true for many of the senior Members of both Chambers. Unfortunately if a true working individual manages to get elected, he or she will not be regarded positively by the general public as special interest monies will bring them down.
How can we get the money factor out of politics and legislation?
Eight (8) Days from introduction to passage of ENFORCE in the House. Not one (1) minute, however, spent on trying to make it possible for the laws to be coded in such a manner that enforcement becomes a non issue. Believe it or not discretion can be written into the law. It can have a formula and does not have to be left entirely to personal whims.
Of course those personal whims are acceptable when you get to make the decision or have the decision you want rendered.
What, or has anything changed, from the Heritage Foundation’s interpretation back in 2001?