The Imperial Obama Presidency and the Demise of Checks and Balances – Guest Essayist: U.S. Senator Ted Cruz

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Under President Obama, America has witnessed an unprecedented expansion of presidential power.  This is not merely the observation of political opponents.  Liberal law professor Jonathan Turley—who voted for President Obama—has reached the same conclusion:  “We are seeing the emergence of a different model of government in our country—a model long ago rejected by the Framers.”[1]  “What’s emerging,” according to Professor Turley, “is an imperial presidency, an über-presidency . . . where the President can act unilaterally.”[2]

President Obama frequently claims power to act when Congress will not, as though his powers are somehow enlarged the moment Congress refuses to address his priorities.   “I take executive action,” said the President, “only when we have a serious problem, a serious issue, and Congress chooses to do nothing.”[3]  He repeatedly threatens that “if Congress won’t act, I will.”[4]  Frustrated by Congress’s refusal to enact his agenda or by laws that he simply finds to be inconvenient, President Obama has too often resorted to unilateral executive action to override acts of Congress or to implement policies that he was unable to enact through the proper constitutional process.  Many examples are documented in a series of reports I authored last Congress[5] and in a recent law review article titled “The Obama Administration’s Unprecedented Lawlessness” in the Harvard Journal of Law and Public Policy.[6]

At any other time in our history, it would have gone without saying that this is not how our system of government works.  Article I of the Constitution vests Congress, not the President, with the sole power to legislate.  Article II, by contrast, charges the President with the responsibility to “take Care” that the laws enacted by Congress be “faithfully executed.”  Given this division of power, the President cannot act until Congress does.  But President Obama sees congressional inaction, not as a limitation on his power to act, but as a license to act.  This is the logic of Caesar, not the logic of a president in a constitutional republic.

The Framers built checks and balances into the Constitution to prevent the President or any other branch of government from consolidating and wielding all power.  “The accumulation of all powers . . . in the same hands,” wrote James Madison in The Federalist No. 47, is “the very definition of tyranny.”[7]  But these checks and balances have failed to stop President Obama’s lawlessness.

The reason for this failure lies in Congress’s refusal to fulfill its constitutional role.  For far too many members of Congress, partisan loyalty to the President and ideological commitment to his goals outweigh any interest in asserting their own institutional rights and prerogatives as the people’s representatives.  They are all too willing to hand power over to the President.

This is not what the Framers envisioned.  According to Madison in The Federalist No. 51, “the great security against a gradual concentration” of power in one branch of government lies in giving the members of each branch “the necessary constitutional means, and personal motives, to resist encroachments of the others.”[8]  “Ambition must be made to counteract ambition,” he said.[9]  But Madison did not expect that members of Congress would be motivated less by personal motives and ambition than by partisan loyalty and ideology.  So long as the latter trump the former, the Constitution’s checks and balances cannot work as Madison had hoped.  A Congress populated with enough partisans of the President—not to mention those who simply lack commitment to defend their constitutionally appointed role—will not stand up to the President, even as he takes their power away.

In the absence of a functioning system of checks and balances, the only way to put a stop to presidential lawlessness is for the American people to rise up and demand it.  Despite his faith in the “auxiliary precautions” of checks and balances, even Madison understood that the people are ultimately “the primary control on the government.”[10]  That means that the people must hold their representatives accountable when they fail to uphold their oaths and perform their constitutional duties.

President Obama’s reign will soon come to an end.  To ensure that the imperial excesses of the Obama presidency are never repeated, the people must elect constitutionalists—those who will respect and adhere to the constitutional design above all else, including party loyalty and ideology.  The future of our constitutional order, which secures our liberty, depends on it.

In the twilight of the Roman republic, Cicero wrote the following:  “The Republic, when it was handed down to us, was like a beautiful painting, whose colors were already fading with age.  Our own time has not only neglected to freshen it by renewing its original colors, but has not even gone to the trouble of preserving its design and portrayal of figures.”[11]  Let the same not be said of us.

The Honorable Ted Cruz is the 34th Senator from Texas, elected in 2012. He serves on the Senate Judiciary Committee’s Subcommittee on the Constitution. He is the former Solicitor General of Texas, and a former Adjunct Professor of Law, teaching U.S. Supreme Court Litigation at the University of Texas School of Law, from 2004-2009. He has also served as an Associate Deputy Attorney General at the U.S. Department of Justice, and as a law clerk to Chief Justice William Rehnquist on the U.S. Supreme Court.

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[1] Authorization to Initiate Litigation for the Actions by the President Inconsistent with His Duties Under the Constitution of the United States:  Hearing Before the H. Rules Comm., 113th Cong. (2014) (statement of Jonathan Turley, Professor, The George Washington University Law School), available at http://docs.house.gov/meetings/RU/RU00/20140716/102507/HMTG-113-RU00-Wstate-TurleyJ-20140716.pdf.

[2] Greg Richter, Jonathan Turley: America Becoming ‘Imperial Presidency, Newsmax (June 4, 2014), http://www.newsmax.com/Newsfront/Jonathan-Turley-Obama-presidency-power/2014/06/04/id/575014/.

[3] Transcript, President Obama’s June 30 Remarks on Immigration, Wash. Post (June 30, 2014), http://www.washingtonpost.com/politics/transcript-president-obamas-remarks-on-immigration/2014/06/30/b3546b4e-0085-11e4-b8ff-89afd3fad6bd_story.html.

[4] Charles C.W. Cooke, The ‘We Can’t Wait’ Clause, National Review (Aug. 28, 2014), http://www.nationalreview.com/article/386613/we-cant-wait-clause-charles-c-w-cooke.

[5] Senator Ted Cruz, The Legal Limit:  Reports on the Obama Administration’s Lawless Abuses of Power, http://www.cruz.senate.gov/lawless/.

[6] Senator Ted Cruz, The Obama Administration’s Unprecedented Lawlessness, 38 Harv. J. L. & Pub. Pol’y 63 (2015), http://www.harvard-jlpp.com/wp-content/uploads/2015/02/Cruz_Final.pdf.

[7] The Federalist No. 47, at 244 (James Madison) (Gary Wills ed., 1982).

[8] The Federalist No. 51, at 262 (James Madison).

[9] Id.

[10] Id.

[11] Anthony Everitt, The Rise of Rome:  The Making of the World’s Greatest Empire 403 (Random House 2012).

17 replies
  1. Bryon Harrelson
    Bryon Harrelson says:

    Obama was elected President,that does not mean that he is the king,evidently he’s not smart enough to know the difference.

    Reply
    • Milton Alvis
      Milton Alvis says:

      As a constitutional lawyer, Obama is quite smart. He studied the constitution so as to understand how to use and violate it, in preparation for President. ConventionofStates.com, state legislatures redefining (again) what the constitution does & does not mean is the best answer to wrestle government power back from the President, Congress, Supreme Court to the citizens, whose rights the government is supposed to protect in the eyes/goals of the founding fathers, an extremely unusual vision (throughout history) of government.

      Historically, driven by human nature, government dominates the populace, not supports it. Why would humans put up with this? Are not we all born into dictatorships (helpless vulnerable infants hoping for the lover/beneficence of others-despite common short-supply.) Study: goo.gl/6SSgPB & http://goo.gl/UyOXLj.

      Reply
      • Understanding the Law
        Understanding the Law says:

        Article I, Section 1 – What It Means

        The framers of the Constitution separated the powers of government into three branches, granting legislative power (the power to pass laws) to Congress, executive power (the power to administer the laws) to the president, and judicial power (the power to interpret and enforce the laws) to the courts. The unique and limited powers of Congress are contained in Article I.

        The framers of the Constitution separated the powers of government into three branches, granting legislative power (the power to pass laws) to Congress, executive power (the power to administer the laws) to the president, and judicial power (the power to interpret and enforce the laws) to the courts. The unique and limited powers of Congress are contained in Article I.

        Another important principle is contained in Article I, Section 1: The federal government’s power is limited to what is written in the Constitution. These are known as “enumerated powers.” If the Constitution does not specifically give a power to the federal government, the power is left to the states.

        The framers believed that this separation of powers would ensure that no one person or group of persons would be able to create, administer and enforce the laws, and that each branch would be a check on the power of the other two branches. Under this scheme, Congress cannot give its lawmaking powers to the executive or judicial branch. The courts are charged with ensuring that the three branches act independently and do not overreach their delegated powers.

        Article I, Section 9, also requires that Congress produce a regular accounting of the monies the federal government spends. Rejecting the monarchy of England, the Constitution also specifically prohibits Congress from granting a title of nobility to any person and prohibits public officials from accepting a title of nobility, office, or gift from any foreign country or monarch without congressional approval.

        (For Example: Obama as Imperial Dictator or Clinton as Anointed Queen of the Free World would not be acceptable and unconstitutional)

        Article I, Section 10 – What It Means

        Article I, Section 10, limits the power of the states. States may not enter into a treaty with a foreign nation; that power is given to the president, with the advice and consent of two-thirds of the Senate present.

        (It says clearly, treaty power is given with advice and consent of 2/3rds of the Senate present) (Not solely to the Pressident or to the UN).

        Reply
        • Understanding the Law
          Understanding the Law says:

          The above was excerpted in part from an Annenberg Classroom article on the Legislative Branch which explained the separation of powers as well as any I’ve seen over the years.

          Reply
    • Dr. Naoma
      Dr. Naoma says:

      The problem lies directly at the feet of congressmen who are too old now to do their jobs, and are too afraid of this government to do anything about it.. time to elect new congressmen and get rid of the old..it is their time to retire period!

      Reply
  2. Joey Bainbridge
    Joey Bainbridge says:

    You can’t expect a populace who have no understanding of the Constitution to require their elected representatives to do anything.

    Reply
  3. C Warren
    C Warren says:

    Your characterization of Obama’s unethical, if not unconstitutional, behavior is correct; but so insidious was the impetus for this phenomenon that it escaped you and many others.
    Congress, with the help of Al Gore, created King Obama.
    The Constitution clearly empowers states to conduct and regulate their own elections. After the 2000 election, when Gore and the GOP alternately implored the judiciary to contravene, and the court obliged, the minority party in congress began running to the court to circumvent the majority party. By both parties acquiescing to the court’s decisions congress gave tacit approval to the court exercising legislative powers.
    Both sides touted the court as the “law of the land”; enabling them to scapegoat the court for decisions to which the populace objected, so as not to hinder future reelection bids.
    The unintended consequence was the creation of an omnipotent branch of government.
    The US Constitution vests “all” legislative powers in the congress. Amending, expanding and repealing laws are legislative acts; power which is not constitutionally conferred on the judiciary.
    Notwithstanding the court can routinely usurp congress because every action of every member of congress is informed by it potential effect on their next reelection bid. Therefore congress has become inert; dysfunctional and unable to assert its constitutional authority and meet its constitutional responsibility.
    Obama recognizes this dynamic and chooses to exploit it to the benefit of himself and his party. His propensity to do so is demonstrative of his lack of character; and it, together with the court’s intention to declare a constitutional right which does not and cannot exist unless and until the US Constitution is amended in accordance with Article V of the Constitution, accentuates the need to install a functional congress by ceasing to vote party and starting to vote person.
    Blaming Obama may be popular but it will not solve the problem. The problem is in congress.

    Reply
    • Dani Eblen
      Dani Eblen says:

      It makes sense to count the votes of each person, It’s not been that long ago when there were many dollars spent getting people to register and vote. Social blames thus living conditions worsens except for the only good part about it is children and the best schooling for children that can be provided is available and believable. Aside from that there’s to much wasted; parents loosing their children andor lack of education against their will, experimental: use of drugs( formal & on the streets), program development and use, and the affects to people and impact most likely onto to those same people at one time or another really is alot to throw on us, but when it’s good it’s great. We have to accommodate ourselves and family this is how it has always been. If you got a job and make low wages that doesn’t go anywhere it’s temporary. Use to, and even then it was a very very very small group, America stood out in people , if it were religion then America stood out in people. However, getting over the hump the clearest speaking people are Russian support persons, simply co-workers in hospitals. Most scientific facilitator type people who make the lead in small groups are the persona of inspiration and hopeful feeling just from a short time around them, and a learning tool if passive to assertive is a quality in mind sought. Not to ever grow up because of a five year old stepping stones were interrupted and forever punished and an example for everyone else. So yes I’d say the constitution should promote the decency that can come from it.

      Reply
  4. susan
    susan says:

    ” In the absence of a functioning system of checks and balances, the only way to put a stop to presidential lawlessness is for the American people to rise up and demand it.” An Article V, in the Constitution, a Convention of States can reign in the Federal Government. And We the People can take back our country.

    Reply
  5. Philip
    Philip says:

    It is congress itself which has given the legislative power away, by delegating the power to create “regulation”, having the force of law, to non-elected bodies controlled by the executive.

    Prime example being the EPA.

    This is because congress and the senate are not willing to invest the time and energy to do what they were elected to do, and what the constitution demands of them.

    Reply
    • C Warren
      C Warren says:

      Actually the senate is part of congress; and while the EPA and the EEOC are examples of aggressive, oppressive organizations that are out of control, the supreme court is still the most pernicious violator of the US Constitution that congress needs to rein in first.
      Next month it will declare a constitutional right to gay marriage even though the US Constitution articulates no right to any kind of marriage.
      Marriage clearly falls under states 10th amendment rights and only congress can override it; which it did with DOMA. The court had and has no authority to amend, repeal or invalidate an act of congress; but unless congress asserts its authority and stop the court’s planned declaration, the court will continue to ride roughshod over everyone’s constitutional rights as it sees fit.

      Reply
  6. Lee
    Lee says:

    Congress has not given-up in the sense that they are at a loss of what to righteously do. Congress (U.S. House of Representatives & U.S. Senate) has given-up their integrity; they are bought and paid for by the Obama Administration.

    Let’s not forget the federal courts, including the U.S. Supreme Court, they’ve also been bought and paid for by the Obama Administration.

    BTW, this aforementioned corruption was paid for with U.S. Taxpayer money.

    Reply
  7. Arthur Bedford
    Arthur Bedford says:

    Senator Cruz stated in this essay.”In the absence of a functioning system of checks and balances, the only way to put a stop to presidential lawlessness is for the American people to rise up and demand it.” The Framers of our Constitution gave us this power in second method under Article V to amend the Constitution. That is, the people, through their state legislatures, call a convention of States to rein in the power and jurisdiction of the Federal Government.

    There is a movement occurring now that is attempting to do this. The Convention of States Project (www.conventionofstates.com) created an application for such a Convention of States. Its application calls for fiscal restraints on the Federal Government, limits on the power and jurisdiction of the federal government, and limits on the terms of service for Federal officials and Congress. This application is currently making its way through 29 state legislatures. 3 states have passed it, Georgia, Florida, and Alaska. When 34 pass it, the convention must be called. All amendments that would come out of that conference must be germane to the application and be ratified by the 3/4 of the 50 states. This is how we take our country back constitutionally.

    Reply
  8. Darren
    Darren says:

    As if Republicans don’t participate in the power grab too! They sound great when they’re out of office but once in they’re just as bad.

    Anyway, this is exactly what the anti-federalists said would happen if the CONstitution was ratified. Here’s the anti-federalist Patrick Henry on the subject:

    “When the American spirit was in its youth, the language of America was different: liberty, sir, was then the primary object…by that spirit we have triumphed over every difficulty. But now, sir, the American spirit, assisted by the ropes and chains of consolidation, is about to convert this country into a powerful and mighty empire…Such a government is incompatible with the genius of republicanism. There will be no checks, no real balances, in this government. What can avail your specious, imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances? But, sir, we are not feared by foreigners; we do not make nations tremble. Would this constitute happiness, or secure liberty?”

    “It is on a supposition that your American governors shall be honest, that all the good qualities of this government are founded; but its defective and imperfect construction puts it in their power to perpetrate the worst of mischiefs, should they be bad men; and, sir, would not all the world…blame our distracted folly in resting our rights upon the contingency of our rulers being good or bad? Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty! I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt.”
    http://en.wikisource.org/…/Henry%27s_speech_in_the…

    The CONstitution has failed as the anti-federalists warned that it would.

    Reply
  9. Sherry
    Sherry says:

    We have the best president and congress that money can buy.

    In addition to this major problem, we also live in an America that is all doped up and many of the voters are asleep at the wheel. They are willing to fight to have the right to smoke and grow pot, but are unwilling to read news articles or inform themselves about what is actually happening in the US, therefore we have a majority of uninformed, practically illiterate zombies who repeatedly vote in immoral or ineffective representatives.

    The news is controlled by one political party and they have captured the interest of the majority of the hipsters in our society. They voted for Obama because they thought he was cool and they had absolutely no clue about his probable effectiveness as an executive in the White House. All proof to the contrary has been and will be ignored utterly.

    In addition, the search engines have weighted news stories and search engine search returns that benefit one party and one point of view, making it difficult, at best, to research a topic and get the facts. Between the expenditure of billions of dollars to put a specific candidate in to office, the slanting of the news, and the dumbing down of the electorate, I don’t know how we’re ever going to break out of the rut – or the road to ruin – that we are trekking.

    Reply

Trackbacks & Pingbacks

  1. […] Cruz wants a return to lawful, constitutional government. As an attorney, he has argued and won cases in district courts and the Supreme Court defending Americans against the Left’s assault on the Bill of Rights. He’s also been highly critical of Obama’s disregard for Article I of the Constitution and has written about it repeatedly. Here’s a snippet from The Imperial Obama Presidency: […]

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