We most conscientiously commemorate epoch making events in human history by fully recalling their signal importance to the welfare or suffering of humanity. This year, as we approach the anniversary of America’s Declaration of Independence, Americans still disposed to do so should have no problem commemorating its anniversary in this conscientious way. The purpose of the Declaration was not only to proclaim the decision by the people of the United States of America politically to separate themselves from the people of Great Britain. It was also to “declare the causes which impel them to the separation.” As we appreciate the justice of those causes, we appreciate the justice of their cause. By so doing we better understand the sacrifices of life and property, of honor and human affection which they made in the service of that cause.
For better or worse, (our actions will decide) the same causes which impelled the people of the United States to separate themselves from the people of Great Britain are now every day in evidence in the politics and governance of the United States. Consider, for example, the first of the facts the American patriots “submitted to a candid world.”
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
This past Friday Barack Obama suspended enforcement of current immigration law in order to grant a certain class of illegal immigrants the privilege of residing in the United States unlawfully. His critics say that he has acted unconstitutionally. But the U.S. Constitution clearly grants the President of the United States the “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Reprieves and pardons precisely involve postponing or entirely forbearing to execute what would otherwise be the consequences of law (in this case, deportation proceedings), even when, after proper trial and conviction, a person has been unequivocally sentenced for a crime.
Laws, including the Constitution itself, are rules, but they are rules with the special status that comes from the fact that they express a sovereign will and purpose backed by the united force of the community subject to the sovereign’s jurisdiction. Without such enforcement, there may be rules, but there is no law. Thus, though it can be said that the Constitution authorizes no anticipatory or de jure suspension of the operation of the laws of the United States, yet by granting the President the option of suspending action against offenses in every case except that of impeachment, it makes possible a de facto suspension of law enforcement (including with respect to its own provisions) in exigent circumstances (this by way of a Presidential promise to potential offenders that he will act to forestall the legal consequences of actions taken at his behest.)
Yet the U.S. Constitution also directs that the President “shall take care that the laws be faithfully executed”. Since the conditional or unconditional suspension of law enforcement is allowed by the Constitution, mere reference to the Constitution is insufficient to supply the rubric or standard of a President’s faithfulness. Does this mean that the President may with impunity suspend the execution of the laws? Not necessarily; but it does mean that impeachment is the only sure way to call him to account when the people are challenged by an instance in which, by suspending law enforcement, he appears self-evidently to have abjured the oath by which he swears faithfully to execute his duty. By that oath the President swears to “preserve, protect and defend the Constitution of the United States.” Obviously, there may be exigent circumstances in which the preservation and defense of the Constitution require actions that supersede, in some extraordinary situation, one or another of its provisions. If a President authorizes the actions he deems necessary and proper to deal with the situation, has he broken or kept faith with his Constitutional oath?
The standard for judging his faithfulness in this regard cannot be simply what the Constitution does or does not allow, since the Constitution, which is the Supreme Law of the land, makes provision for the President to suspend action against offenders in any case but that of impeachment. This provision may be intrinsically necessary to assure that, in every possible circumstance, the Chief Executive and Commander-in-Chief can, without damaging delay, do and order whatever action is necessary to preserve and defend the nation’s Constitution. But any and all abuses of this extraordinary power must be intrinsically dangerous to constitutional self-government. As Hamilton argues elsewhere (Federalist #25) “every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country….”
A President’s decision to suspend law enforcement is therefore not simply a matter of semantics, or of legal or even constitutional interpretation. It is in and of itself a threat to the integral authority of the Constitution, one that must in every instance be carefully and scrupulously investigated to ascertain whether it is justified. Thus, even as it entrusts this power to the Chief executive, the Constitution leaves no doubt that any suspected abuse of it must be examined by way of impeachment, the only provision of U.S. law in respect to which the President has no authority to reprieve or pardon offenses.
Hamilton suggests in Federalist 65 that by its very nature impeachment calls for a political decision of the highest order. He says that the subjects of impeachment:
…are those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
It is no coincidence that the language Hamilton uses here to describe the subjects of impeachment is almost identical to the language he later uses (Federalist #74) when he describes treason as “a crime leveled at the immediate being of the society.” What the Constitution calls “high crimes and misdemeanors” are infractions by officials at such a high level of authority that, on the face of it, their abuses are tantamount to treasonous crimes.
The subjects of impeachment therefore demand a prudential judgment, based on careful consideration of the circumstances and guided not only by the letter but the spirit of the Constitution, which demands respect for the true origin and aim of just government. This must be especially true for the impeachment of a sitting President, since the Constitution itself places the power to take exception to the enforcement of the laws of the United States almost entirely in his hands. (This power is, by the way, reminiscent of the power of the Roman ‘tribunes of the people (plebeians)’, whose role in the ancient Roman Republic was probably as familiar to the founders as the Roman office of Dictator.)
It is vitally important to remember, at this point, that the President’s power to suspend enforcement of U.S. law in any given case does not extend to State laws, duly enacted by means of the sovereign powers which the Constitution reserves to the people in their respective States. If we think, as the Framers of the Constitution certainly did (read Federalist #10), about the practical implications of this fact, we realize that America’s founders expected that, if necessary, the armed forces of the States respectively and of the people would back up the Constitution’s impeachment provisions until, by the Constitutional removal of the Chief Executive, command of the armed forces of the nation has been removed from the person occupying the Presidency. Thus each and every occasion on which the President unconstitutionally abuses his extraordinary power raises the sombre specter of civil war. Neglecting such infractions, however large or small they at first may appear, is like failing to clean and dress a wound. At length, by leaving an infection to multiply, even a small breach may develop enough noxious power to threaten life itself.
Where Barack Obama is concerned, this is especially true. During his public career he has repeatedly expressed the view that the Constitution is outdated; that the ideas and concepts from which it is derived interfere with achieving the goals of his socialist ideology. When someone with these convictions abuses the power of the office he occupies in a way that plainly contravenes the Constitution’s provisions, it is both wise and prudentially necessary to assume that his motives are suspect; that he acts with hostile intention derived from his ideology, in order to circumvent or destroy the Constitution, not to preserve or defend it. This is especially true when, as in the immigration matter we are discussing, there is no evidence of any urgent or immediate threat requiring suspension of the Constitution’s prescribed legislative prerogatives and procedures.
With this in mind, Obama’s suspension of law enforcement with respect to certain provisions of U.S. law re immigration ought immediately to produce a vote in favor of impeachment in the House of Representatives. Though his action amounts to granting a reprieve to individuals otherwise subject to deportation under the law, he applies that reprieve, as it were, out of the clear blue sky, in the entire absence of exigent circumstances that might justify urgent action in defense of the Constitution. This is not appear to be a necessary exercise of extraordinary Executive discretion justified by exculpatory circumstances. To all appearances it is clearly a usurpatory exercise of legislative power, by which he purports to repeal an existing provision of law and substitutes for it another one, of his own making.
According to the Constitution’s provisions, the legislative initiative of the U.S. Government is vested in the Congress of the United States. Therefore Obama’s action patently violates the provision by which the authority of law derives from the consent of the people, expressed through their duly elected representatives. This may be in practice the most fundamental provision of constitutional self-government, the one which distinguishes lawful government from gangsterism. Read the whole bill of particulars contained in the Declaration of Independence. King George’s cavalier violation of this very principle was what chiefly caused the first American patriots to reject his rule.
Obama may wish to plead that, on account of exigent circumstances, his self-evident violation of the Constitution is somehow necessary; that he undertakes it in order to preserve or defend the Supreme Law he thus refuses to uphold. But unless he is impeached by the House of Representatives, and tried by the U.S. Senate, he will have no proper opportunity to offer a defense against a charge that is otherwise self-evidently true. He will have no opportunity to substantiate with facts and reasoning the threats and dangers he acted upon, and the damaging consequences that must follow from neglecting them. He will have no chance to make clear how his assault against the people’s fundamental right of self-government is somehow necessary in order to preserve the unalienable rights their government otherwise exists to secure.
In his discussion of the impeachment power in Federalist #65 Hamilton asks “What…is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men?” On the face of it, Obama’s action involves the most dangerous possible abuse of the very great discretionary power entrusted to the office he occupies. Such an abuse, in and of itself, is sufficient to warrant withdrawing that trust. It involves the consolidation of the legislative and executive powers of government in a tyrannical exercise that entirely eviscerates the practice of constitutional government. Moreover, in the particular case in point, it does so in order to facilitate a policy that could allow the Executive lawlessly to import new inhabitants into the country to transform the sovereign body of the people against their interest and without their consent.
Faced with such a grave charge of tyrannical disloyalty and treasonous dereliction, Obama has the right to be openly accused and fairly tried. Faced with the possibility of a tyrannical threat potentially fatal to their self-government, the people of the United States have the right to hear the facts and reasoning that prove or disprove the charge. Indeed it is their duty, and the duty of their representatives in Congress, to follow the Constitution’s provisions in this regard. If they do not, they leave unanswered an internal threat to the U.S. Constitution, one that is more grave than the aggravating dangers which the neglected security of our borders must already have allowed into our midst.
Unhappily for the American people, despite the present GOP majority in the House of Representatives, the elite faction’s corruption of the political process makes it unlikely that Obama’s self-evident assault on the lynchpin of constitutional self-government will be fairly and scrupulously examined via the impeachment process. In my next posting I will examine the facts and reasoning that substantiate this expectation.