Historians may look back on Jan. 14, 2014, as a tipping point in American history. On that day, President Barack Obama urged his cabinet to help him identify ways to advance economic recovery by circumventing the legislature.
“We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need,” the president told reporters before his cabinet meeting. “I’ve got a pen, and I’ve got a phone. And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward in helping to make sure our kids are getting the best education possible, making sure that our businesses are getting the kind of support and help they need to grow and advance, to make sure that people are getting the skills that they need to get those jobs that our businesses are creating.”
No president since World War ii has openly justified executive overreach by saying that it was necessary to circumvent legislatures because they refused to do what he wanted!
In saying this, President Obama was articulating the philosophy that has increasingly defined his presidency: I can’t wait for Congress to do its job, so where it won’t act, I will.
Two weeks later, during his State of the Union address, President Obama notified both houses of Congress of his decision to go it alone in areas where they refused to act to his satisfaction. One would think an announcement in such blatant violation of America’s tripartite system of checks and balances would elicit an outcry, or at least stunned silence. Instead, the floor of the House of Representatives erupted in thunderous applause. It really looked like America’s lawmakers were delighted at the notion of a president usurping unprecedented and unchecked powers at their expense.
Georgetown law professor Jonathan Turley, a political liberal, was one of the few legal minds at the time warning of the danger behind this executive power grab. “The system of separation of powers was not created to protect the authority of each branch for its own sake,” he wrote in a Los Angles Times editorial. “Rather, it is the primary protection of individual rights because it prevents the concentration of power in any one branch. In this sense, Obama is not simply posing a danger to the constitutional system; he has become the very danger that separation of powers was designed to avoid” (March 9, 2014).
In the same editorial, Turley warned: “The United States is at a constitutional tipping point: the rise of an über-presidency unchecked by the other two branches.” America has moved into a dangerous era where the only constraints on presidential power are no longer constitutional—merely political.
Expanding Executive Privilege
As president, Mr. Obama has modified and ignored various provisions of the Affordable Care Act with barely a pretense of legality. He has launched a military campaign in Libya without congressional approval. He has appointed “czars” as a means to evade the constitutional requirement that the Senate confirm high-level government officials. He has asserted the right to kill American citizens without due process if a “high-level official” says they pose an imminent threat to the nation.
When confronted in 2014 about his record of executive overreach, the president taunted his critics: “Middle-class families can’t wait for Republicans in Congress to do stuff. So sue me.”
To make it harder for the courts to rein in executive decisions, President Obama has been substituting “executive actions” for executive orders. Unlike executive orders, which are issued as an official cataloged transcript, executive actions are informal orders from the president to his underlings in the executive branch. Judge and judicial analyst Andrew Napolitano recently warned that issuing executive actions instead of executive orders could make it “more difficult and cumbersome” to legally challenge the president’s decisions.
In November of 2014, President Obama issued executive action on immigration policy. He instructed the executive branch of government to offer temporary legal status to millions of illegal immigrants. This order unilaterally enacted immigration reform that congressional lawmakers wouldn’t enact themselves.
When hecklers interrupted one of his speeches by demanding an immediate end to all deportations, the president responded by saying, “What you’re not paying attention to is the fact that I just took an action to change the law.”
Apologists for the Obama administration will claim this executive action was no different from previous executive actions enacted by former U.S. Presidents Ronald Reagan and George H. W. Bush. What they fail to notice is that both Reagan and Bush were instructing the executive branch to enforce somewhat ambiguous aspects of immigration law that had already been passed by Congress. President Obama’s action was truly historic in that Congress had already declined to pass an immigration reform bill. As he himself admitted, his executive order truly did take “an action to change the law.”
Under the U.S. Constitution, Congress writes laws, the court interprets laws, and the president enforces those laws. Executive action is not illegal as long as it falls within the parameters of enforcing laws already passed by the legislature. Creating new law via executive fiat, however, is the very definition of an imperial presidency!
In this case, a three-judge panel of the Fifth Circuit Court of Appeals was able to strike down President Obama’s executive action on immigration reform as unconstitutional since it created new law. The case is currently awaiting an appeal to the U.S. Supreme Court. The court ruling on the legality of President Obama’s power grab will be another defining moment for the American republic.
If the separation of powers has eroded to a point where a president can unilaterally enact legislation, then America is nothing more than an authoritarian monarchy where 51 percent of the people elect their king every four years!
Sprawling Bureaucratic State
The president’s power to direct the executive branch to take legislative action is even more worrying when you realize how big, and dangerously off kilter, the executive branch has become over the last century. When certain U.S. presidents in the pre-World War ii progressive era tried to circumvent Congress, they had nowhere near the executive power at their disposal that President Obama has today.
Today, there are about 30,000 federal employees in the legislature branch, 32,000 staff members in the judicial branch and an astounding 2,618,000 non-military workers in the executive branch.
While the country’s population has increased about 80-fold in the past two centuries, the size of the executive branch has exploded to almost 3,000 times its original size. In 1790, there were about 1,000 non-military workers in the executive branch. Today, there are well over 2 million non-military civil servants in the executive branch—spread across 15 departments, 69 agencies and 383 non-military subcommittees!
“The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself,” wrote Turley in a Washington Post editorial. “It is not just bigger, it is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency” (March 24, 2013).
This so-called fourth branch of government now has a larger impact on American citizens than the other three branches combined.
The legislative branch no longer issues the vast majority of “laws” governing the United States. Instead, these “laws” are issued as “regulations” crafted by thousands of unelected, unreachable bureaucrats.
One study found that Congress only enacted 138 public laws in 2007, compared with 2,926 regulations enacted by federal bureaucrats working for the administrative state. A similar study found that federal judges conduct roughly 95,000 adjudicatory proceedings, including trials, each year, compared with 939,000 cases tried by administrative “courts” tied to individual federal agencies in the executive branch.
These adjudicatory proceedings conducted by administrative agencies are often a mockery of due process, based on one-sided presumptions and procedural rules favoring the agency over the accused.
In a telling speech given on Constitution Day in 2010, Harvard professor Michael Klarman condemned conservatives of “constitutional idolatry,” citing the rise of the administrative state as both unconstitutional and necessary for the good of the country. “The framers set up three branches of government—executive, legislative and judicial,” he said. “But today we have a vitally important fourth branch—the administrative state—which is almost certainly unconstitutional in multiple ways according to the original design of the framers. Yet courts have legitimized administrative agencies, and it’s hard to imagine them doing otherwise.”
While it is true that federal agencies in this so-called fourth branch of government have a great deal of autonomy, the people who run them are still appointed by the U.S. president. So this administrative state is really an outgrowth of the executive branch of government.
When Congress has tried to rein back the growth of this sprawling federal bureaucracy in the past, it has found itself blocked by claims of expanding executive privilege.
The rise of the administrative state didn’t begin with President Obama. This dangerous problem has been growing for over a century, since the Woodrow Wilson administration at least. Yet the Obama administration has used the powers of the executive bureaucracy to micromanage people’s lives to a level unprecedented in American history. The current administration has used the powers of the Internal Revenue Service to target the president’s enemies, mostly conservative and pro-Israel groups. It has used the powers of the Justice Department to seize the records of more than 20 Associated Press phone lines in what was called a “massive and unprecedented intrusion.” It has used the powers of the National Security Agency to conduct covert surveillance programs in violation of the Fourth Amendment, illegally keeping phone and Internet records of millions of Americans with the full cooperation of nine major Internet companies. The revelations just keep coming.
Four decades ago, U.S. President Richard Nixon was impeached on charges related to illegal wiretapping in the Watergate incident. Now, the Obama administration can use its National Security Agency to illegally spy on the private conversations of U.S. lawmakers without any serious opposition whatsoever!
“A growing crisis in our constitution system threatens to fundamentally alter the balance of powers—and accountability—within our government,” wrote U.S. Sen. Ron Johnson and Professor Turley in a joint Washington Post editorial. “This crisis did not begin with Obama, but it has reached a constitutional tipping point during his presidency” (June 27, 2014).
There is an unparalleled spirit of lawlessness behind all of these scandals. Congress and the courts are being sidelined by an out-of-control executive branch that is ruling via executive action and a vast army of bureaucrats.
Nationalized Law Enforcement
As if this centralization of power in the hands of America’s chief executive weren’t enough, voices across the country are now clamoring for the Obama administration to nationalize local law enforcement.
Quite remarkably, the U.S. Constitution deliberately delegates law enforcement to the local level. Currently there are about 760,000 state and local police officers in America with power to make arrests. Combined with the 120,000 federal officers in this country, the police compose a force roughly two thirds as large as the U.S. military.
The Constitution’s intent is the reason for the approximately 18,000 state and local law enforcement agencies in the United States. When law enforcement responsibilities are divided among 18,000 agencies accountable to directly elected local officials, it becomes extremely difficult for anyone to set himself or herself up as a tyrant. If a county sheriff abuses his or her office, it is much easier for the local community to elect a better sheriff than it is for that community to change the policies of unelected bureaucrats in Washington, d.c.
America’s founders were deeply wary of standing armies in peacetime. They could have given the federal government a well-armed federal police agency to contain and reverse violent threats to domestic tranquility—but they deliberately didn’t. Instead, they limited the power of the government, the federal government in particular. They wanted to reduce threats to individual liberty.
Above all else, the framers believed that government power should be decentralized so that no one person or branch of government could emerge as a force of tyranny. As James Madison said at the Constitutional Convention in 1787, “A standing military force, with an overgrown executive, will not long be safe companions to liberty.”
Despite the reasoning of the founders, civil right leaders and Black Lives Matter activists are now calling for just such a standing army. After a white South Carolina police officer shot an unarmed black man last spring, racial activist Al Sharpton called for a nationalized police force. Never mind the fact that the officer was arrested and prosecuted at the local level. “There must be national policy and national law on policing,” Sharpton said. “We can’t go from state to state; we’ve got to have national law to protect people against these continued questions.”
President Obama has admitted that he “can’t federalize every police force in the country and force them to retrain.” Despite this admission, however, he is working hard to violate the spirit of the law and force federal control over local police departments. The Obama administration released its Task Force on 21st-Century Policing plan last year to impose federal standards on state and local police forces. Critics of the plan have pointed out that it underhandedly works to nationalize and federalize law enforcement by using federal tax dollars as bribes.
The Task Force on 21st-Century Policing was created via executive order. According to the plan produced by this task force, the Department of Justice will provide technical assistance and incentive funding to local police agencies that decide to turn over police data to federal officials while submitting to federal training and oversight.
The practice of bribing state and local governments to interact cooperatively with the federal government in areas where the executive branch lacks the constitutional authority to act alone is called cooperative federalism. This strategy has been used extensively in America since the 1930s. The danger is that it is often impossible for local governments to regain their constitutionally sanctioned role in government after they have surrendered it to the feds in return for federal tax funding.
The Police Department of Ferguson, Missouri, recently found this out the hard way.
Who Runs Ferguson’s Police?
After initially agreeing to cooperate with the Justice Department on police reform, the Ferguson City Council voted to change the terms of the deal after city officials realized the full monetary cost of implementing the agreement. The Justice Department issued a civil rights lawsuit against the city of Ferguson. The police department has now relented and agreed to pay the cost to overhaul its criminal justice system in accordance with federal standards.
Whether or not you agree with the specific police standards the federal government has imposed on this city, the fact remains that the local voters of Ferguson, Missouri, are no longer in charge of their criminal justice system. Bureaucratic members of the federal administrative state are now directing the Ferguson Police Department.
The Obama administration has selected six other cities as pilot sites for this plan to impose federal standards on local governments: Birmingham, Alabama; Fort Worth, Texas; Gary, Indiana; Minneapolis, Minnesota; Pittsburgh, Pennsylvania; and Stockton, California.
Perhaps this is the type of force Mr. Obama referred to in his 2008 campaign remarks, when he said, “We cannot continue to rely only on our military in order to achieve national security objectives we’ve set. We’ve got to have a civilian national security force that’s just as powerful, just as strong, just as well funded.”
Constitutional Tipping Point
Under the current presidential administration, Congress has been reduced to an almost decorative element of America’s government. The erosion of the U.S. Constitution hasn’t happened because of a coup or a secret plot. It has happened because American citizens have changed. After two centuries of luxury and abundance, we have largely forgotten God and His laws. As a nation, we have trashed traditional values and morals. Great numbers of people have effectively become hostile to biblical principles like personal sacrifice and individual responsibility.
As a result, we have looked to the government to provide for us, instead of relying on God. By delegating more and more power to the central authority of a human-run government, American citizens have created an administrative state with the power to confiscate the freedoms of those who oppose it. A presidential administration that is able to muster support from half the electorate can now operate without constitutional constraints!
In the book of Psalms, God warns: “Put not your trust in princes, nor in the son of man, in whom there is no help” (Psalm 146:3).
Americans have forgotten the maxim, a government big enough to give you everything you want is a government big enough to take away everything you have.
Only the law of God can bring true happiness and freedom to humanity. The framers of the U.S. Constitution understood this to a large extent. They crafted a document to restrain the power of carnal leaders who would seek dictatorial powers, guided only by their own human reasoning, to create their own version of utopia.
In his Farewell Address, President George Washington warned that if respect for the Constitution eroded to a point where the rule of law no longer restrained political parties, there would be no guarantee of liberty!
“It is, indeed, little else than a name, where the government is too feeble to withstand the enterprises of faction, to confine each member of the society within the limits prescribed by the laws, and to maintain all in the secure and tranquil enjoyment of the rights of person and property,” he said. “I have already intimated to you the danger of parties in the state …. The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.”
The rule of law has disintegrated to the point where the nation could descend into a civil war between feuding political factions that put their trust not in a legal framework that protects their freedom, but in authoritarian politicians.
We must see what is happening in America as God does. He does not blame Barack Obama or any other politician to the same extent that many political commentators do. In the end, these nation-destroying problems are actually correction from God to help us see our sins and repent. The spirit of lawlessness that has taken hold in America can only end in the erosion of our freedoms. We must realize that there is no freedom without law. We must also realize that there is no hope in man. Once the failures of human rule have reached their climax, God will intervene. “The kingdoms of this world will become the kingdoms of our Lord, and of his Christ” (Revelation 11:15). Then God be able to teach us the way to true peace, joy and prosperity!