Question: What do President Trump’s executive actions regarding Obamacare subsidies, DACA immigrants, the Paris Accords, and the Iran Deal have in common?
Answer: In each case, the president was restoring to Congress a legislative power that Barack Obama had unconstitutionally seized.
Trump haters on the right and on the left like to chortle that Trump criticized Obama for abusive executive orders, but now Trump is riding the same crooked horse. Ha ha! They sure nailed that hypocrite and his hypocritical supporters.
No, actually, they betrayed their ignorance of Constitutional structure and the meaning of separation of powers. As a general point, there is nothing per se good or bad about executive orders. It all depends whether the president is directing his branch within existing law, for example by prioritizing, or whether he is instead trying to direct his agencies in violation of law, for example by telling them to exercise authority not provided for in current statutes.
Executive orders that stay within the law are perfectly legitimate and simply represent the president directing his branch. Executive orders that transgress the law are unconstitutional and represent the president encroaching on the authority of Congress, or in some cases, the courts.
As a specific point, in each of the cited instances, Obama purported to order something that altered the law or America’s international obligations, and usurped the law-making power of Congress or treaty-ratifying power of the Senate. Accordingly, in each instance, when Trump issued an order to reverse Obama’s grab, he was retrenching presidential power back onto Constitutional ground, and restoring to Congress its Constitutional prerogatives.
As the Federalist’s David Harsanyi explains in this terrific article, not all executive orders are created equal. Most of Trump’s controversial orders have actually strengthened checks and balances and improved America’s Constitutional health. Which is exactly the opposite of what Trump’s permanent critics accuse him of doing. Please read it all.
Something about the Denver DA’s decision not to file charges in the case of Denver East High cheerleaders being forced into the splits stretches credulity. Last summer, a disturbing phone video hit social media and then news channels showing a high school coach, helped by team members, forcing young women in obvious pain down into a split position. One athlete, 13-year old Ally Wakefield was in obvious agony, and cried out “please stop” nine times. The forced stretching tore ligaments and muscle tissue. She required medical treatment and months of physical therapy. This disturbing 30-second video shows her ordeal.
A parent’s letter of complaint to Denver Public Schools took months to prompt DPS to investigate. Only after news stations got involved did officials take action against several involved parties. Five East High and DPS employees, including one of the district’s lawyers, were placed on leave. Ultimately, the coach was fired, and East High’s principal and athletic director resigned. Three ousters and administrative disciple of a district lawyer raise obvious and still unanswered questions about the chain of events and the far reaching ripple effects.
The Denver Police Department and DA’s office opened an investigation last August. On Saturday, October 14, the DA’s office released a statement on its website that no charges would be filed. If Friday night is the traditional dumping ground for releasing embarrassing political stories, Saturday must really be the hoped for graveyard of bad news. DA Beth McCann’s full statement announced:
The video of the incident involving the injured student that has been widely disseminated is painful to watch. However, after a very thorough and careful review of all of the evidence gathered in the investigation and the statements of many members of the cheerleading squad, I have concluded that the evidence does not support the filing of criminal charges. In order to prove a charge of criminal behavior, the case must be proved beyond a reasonable doubt.
There are differing opinions regarding the use of this technique of cheerleading training. While I believe the technique should not be used, that is not the standard of proof for a criminal case. Most of the cheerleading squad participated in the technique that day, and there are differing accounts of the circumstances.
The individual involved should not be a coach in high school sports and he no longer is. The principal and athletic director of the school have retired and resigned. The message should be clear that this type of technique has no place in high school cheerleading coaching. The bad judgment of the coach, however, does not constitute a prosecutable crime.
Several things are remarkable about the statement. First, it asserts that use of the technique in the video is subject to opinion and debate. However, she asserts, the man who committed the acts should not be a coach, and now, she reassures, he’s not. Two other jobs also were ended for good measure. These sound like dire consequences for something that ostensibly is debatable.
DA McCann allows in her own view the stretching technique was inappropriate, but then asserts that that is not the legal standard, which is, that evidence must prove the case beyond a reasonable doubt. That is an illogical connection. First, despite McCann’s reference to “differing accounts, the evidence of what happened is irrefutable. It was witnessed by millions. Second, the patent unreasonableness of what happened in the gym that day is evidenced by public outrage and three terminations. Further, it’s unclear what differing opinions McCann might have received, but if prosecutors want expert opinion on the reasonableness of the actions, they can consult NFL cheerleader Bria Petty who says this is awful and in all her years in the sport, she has never seen anything close to it. Or they can consult Dr. David Jewison, a team physician for several Division I college sport teams, who says it is absolutely wrong and inappropriate.
Finally, if the DA’s office wants to trifle with something as technical and irrelevant as the applicable law, they should peruse Colorado’s statutory definition of assault, which occurs when “a person knowingly or recklessly causes bodily injury to another person.”
This disturbing case raises several questions that need answers from DPS and the the Denver DA. Why were the athletic director and the principal implicated in the supposedly isolated bad judgment of a coach? How did a district lawyer fall under suspicion and scrutiny? Why is the video evidence of what happened and an athlete’s documented injury insufficient to charge a case and take it to a jury?
After Americans wearied of “fundamental transformation” and gave Republicans decisive Congressional majorities in the 2014 midterm elections, Barack Obama famously sniffed that he didn’t really need Congress. By the power of his pen and phone alone, he could implement his agenda. He meant it. In the last years and months of his term, without new legislation from Congress, the Obama administration adopted sweeping new regulations on oil and gas mining, electricity generation, federal control of the internet, rewrote federal immigration law, and shoehorned America into a one-sided nuclear pact with Iran without seeking Senate ratification.
It was an impressive list of policy ticks. Of course, one problem with ruling by presidential edict is that the next president might decide to reverse course on all those unilateral decisions. At least, that is how it used to work. But, a radical movement of lawyers and judges is trying to turn basic civics and government upside down.
Every student learns in grade school that a bill becomes a law only after it’s voted on by both houses of the legislature and signed by the president. Then the president oversees enforcing the law. The new breed of progressive leftist resistance is trying to scrap that historic formula into a one-way liberal ratchet. A new policy becomes law by means of an executive order or regulation, whether Congress acts or not. It gains permanent status when a later president tries to change it, liberal supporters of the prior policy sue to block the change, and activist courts protect it and slap down efforts by later presidents to exercise their own executive power.
The new civics is gaining cachet on the Left, which is counting on the judiciary to preserve liberal policy gains from harm by a Republican president and a Republican Congress. Thus, we have such intrusions as an appellate order ruling that the EPA may not postpone enforcing extreme and costly new regulations on oil and gas drilling while it reconsiders the regulation for possible repeal.
Similarly, after President Trump announced his intention to withdraw President Obama’s policy on Deferred Action for Child Arrivals, a policy that not only spared “dreamers” deportation, but granted them eligibility for work and benefits, former Homeland Security Head Janet Napolitano announced a legal challenge. There is something blithely and literally lawless about her justification. Napolitano argues that Dreamers are good people in a tough situation, and that DACA was a legitimate exercise in prosecutorial discretion. Well, first, a tough situation doesn’t authorize the president to re-write the law; and second, if the executive branch can use its discretion to alter a statute, Napolitano can offer no reason the same branch is barred from using the same discretion to return to the plain meaning of the law.
Similarly, after Trump announced plans to end a illegal subsidy that President Obama had engineered to cover insurance losses in Obamacare exchanges, several states have announced plans to sue the administration to keep the subsidies flowing. This case is especially egregious, as Andrew McCarthy explains. A federal judge has already ruled that Congress did not appropriate the funds for the insurance companies and therefore Obama had no authority to give them the money. Trump’s action is simply reverting to the plain language of Obamacare. But, states and Obamacare’s cheerleaders in the national media are excoriating Trump and hoping the courts will save the illegal bacon.
The pattern continues in energy development. Obama banned drilling in certain areas of the Arctic and the Atlantic. Trump announced a lifting of the ban, and now environmental groups have filed suit to prevent Trump from exercising independent judgment and going his own way.
In all cases, the litigants are unconcerned and unembarrassed that they are asking courts to rule president number 45 does not have exactly complementary powers to decide and act on the same issues as president number 44. Their attitude is, we won it under Obama, and we are entitled to keep it under anyone else. Thanks to Harry Reid doing away with the filibuster for lower courts, the appellate courts are stacked with fresh Obama appointees eager to protect his legacy. Thanks to Mitch McConnell taking the next step and abolishing the filibuster for Supreme Court nominees, the high court might have something to say about that.
The oligarchy rules via taxes, regulation and legislation.
There are two fundamental responses in addressing the oligarchy.
One is the removal of the taxes, regulation and legislation.
The other is to alter the taxes, regulation and legislation.
The first is the position of libertarians and conservatives.
The second is the position of the Left.
The problem with the position the Left has adopted, i.e. to alter the taxes, regulation and legislation, is that the current taxes, regulation and legislation sustaining the oligarchy is a result of the Lefts previous arguments to address the oligarchy via to alter the taxes, regulation and legislation. Wash rinse repeat – endlessly.
The Left has such ego and self-righteousness that they are unwilling to even consider that their proposals are those that the oligarchs prefer. “But but but they did it wrong the previous times! We will do it right – because we are superior!” No, no you are not and yes, you are doing exactly what your Leftist brethren previously did that created this situation in the first place. “But but but if we just control everything – from the price of money down – it will all work this time!” No, no it won’t and no it isn’t.
This will not end well but it will be entertaining.
This country is coming apart at the seams. This country is much more fragile than many people think. A large number of people – but no where near a majority – wish to destroy the existing fabric of government, society and culture. The shooting in Las Vegas appears to have sparked another round of this desire to destroy. These people have moved rapidly from statues to the NFL kneeling to blaming anyone they do not like for the shooting in Las Vegas.
There are people that genuinely believe statues of those who supported slavery should be removed, those who genuinely believe that players that kneeled were doing so to oppose racism and those who genuinely believe that draconian gun regulation is called for. I do not doubt the sincerity of these people – I do think they are delusional in thinking that when the current government/society/culture collapses it will be immediately replaced by something they will find enjoyable and satisfying. THAT is the definition of delusional.
Why would government/society/culture collapse? Because ethics lead to morals and morals lead to laws and the ethics professed by many are those of hate, destruction, deceit and greed.
On top of the ongoing societal disintegration and the ongoing social science experiment in just how many people it takes to not consent before a government is toppled our markets are brittle. Reliable sober people are warning that the stock market is extremely overvalued and due for a significant correction. This correction will not be limited to the S&P but will certainly spread to the bond market, housing, business viability and pensions – and of course derivatives. When – not if – a significant correction occurs it will be ugly. We won’t even talk about government and corporate debt. When paired with the social disintegration that ugliness will be multiplied.
I am not talking about post-apocalyptic Mad Max here – but social and economic disintegration is a fairly well worn path. The United States has all of the classic symptoms of social and economic disintegration – we are becoming increasingly ungovernable as the Federal government is at war within itself, we have destroyed price discovery hence we have destroyed any working markets, we have completely abandoned the concept of risk, and the culture has decided that every bad thing that happens is the other guys fault in some way shape or form. Worst of all many have come to regard government as nothing more than an allocator of spoils and we will fight to the death for our share of the spoils.
We are kind of a despicable people with a despicable culture at the moment. We have Americans actually rooting for North Korea to beat us, we have Americans cheering because they assume primarily Republicans were shot in Las Vegas, we have endless lies and falsehoods to prop our agendas and ideologies and we no longer particularly care that our agendas and ideologies are propped up with lies and falsehoods. In a very real unspoken way we have to normalize lies to maintain a coherent thought process. Many people think the goal is for their lies to be more popular than the other lies – not on what may or may not be true or the conditions under which it may or may not be true. Context is a long-forgotten concept in 2017 America.
Ethics lead to morals and morals lead to laws – a significant number of Americans no longer have any ethics other than to get what ever they can and take it by force from other people if that is the easiest way to get it. Of course that is not what they advertise their ideology to be – they tend to wrap this lust for power and spoils in the much more socially acceptable ‘compassion’ blanket. That ethic leads to our current morals and those morals lead to our current laws focused on who will use force to take what from the other guy. Government has become little more than a power struggle over who will control and allocate the spoils. Our politics have devolved into a personal war over which side of the allocation of spoils you may fall on. Underlying all of this is the irrational belief that the United States will always remain the wealthiest and most powerful country in the world and that we can endlessly pillage the rest of the world for spoils. The United States became the wealthiest and most powerful country in the world because of an ethic – and that ethic is evaporating. That those fighting over the allocation of spoils cannot take a step back and look at the big picture will be our doom. Unfortunately many of these people have been taught by a deficient education system that it was always this way – hence they have no concept that the ethics leading to the morals leading to the laws that allowed the United States to become what has become are wholly different that the ethics they profess today.
I honestly think there is no other solution than to let it crash and burn and then rebuild. The United States has more than enough energy, food potential, infrastructure and smart people so we can rebuild (in what ever configuration) on a rational structure once the chaff gets burned away.
Sometimes societies just collectively go insane and this society is ready for a straitjacket in the rubber room.