The Impending Constitutional Crisis Between Obama And Congress

Sal Bommarito

The paralysis in Washington may result in dangerous constitutional confrontations in the coming months. Ever since the Democrats lost their filibuster-proof majority in the Senate (and then the majority in the House), Republicans have stymied most major initiatives by the president, a great source of frustration for him. The mid-term elections will only make the situation more stressful.

Our government has not been able to do its business in recent years. If the Senate falls to the Republicans, the schism between the warring political factions will become more contentious.

On a number of occasions, the president has said he will issue executive orders to achieve his agenda. In essence, the executive branch intends to move ahead without concurrence of Congress, if Congress is not able to pass any substantive laws.

An executive branch that usurps power and creates laws without legislative concurrence is an autocracy, a dictatorship if you will. The president’s rationale for these moves is: if Congress cannot do the business of the people, he will go it alone.

The Constitution specifically mandates that Congress enact laws. There is “no specific provision that explicitly permits executive orders, in lieu of laws.” However, presidents have used the following constitutional comment about the president: “take care that the Laws be faithfully executed” as the basis of issuing orders and bypassing Congress. Frequently, executive orders are issued in conjunction with laws enacted by Congress and in times of national distress, ie., wars, economic strife and the like. Very few of these orders have been contested.

If President Obama issues orders that are deemed unconstitutional by the Supreme Court and/or Congress, action by these entities is possible. The Supreme Court can rule that an executive order is unconstitutional. A more drastic step would be impeachment proceedings against the president by the House.

Two issues are creating significant distress in Congress, and with it talk of impeachment. The first one relates to acts of war, which may not be made without congressional approval. The Wall Street Journal reports that “limited airstrikes last week aimed at slowing the advance of militants from the Islamic State toward the Kurdish city of Erbil. . . [resulted in] complaints [from Congress] that [President Obama] had usurped the power to declare war that Congress claims as its own.” Briefly, Congress wants the president to clear the use of troops with it . As an aside, Speaker John Boehner may sue the president over these “unilateral actions.” The president indicated that he was acting properly based upon the 1973 War Powers Resolution, which requires the president to report the deployment of troops within 60 days. The ultimate hammer of Congress would be impeachment proceedings.

The other issue that has stoked impeachment talk relates to immigration, specifically the mass, illegal migration of aliens from Mexico and Central America into the U.S. If the president were to issue an executive order making all illegal aliens in the U.S. citizens, a truly outrageous and dubious move, it is highly likely that Congress would move to protect its power. However, a smaller order such as declaring all children who recently entered the U.S. citizens could evoke a congressional response.

The naysayers would argue that the Republicans would not risk another embarrassing impeachment because it would hurt them politically. Or, why impeach when the Senate will not convict? The response to these perspectives is that many congressmen and congresswomen would move to protect Congress from a “despotic” action that would minimize their power and responsibly. In other words, the institution’s power and constitutional responsibilities may trump political affiliation.

Much of the above is speculation about how the executive and legislative branch might act on two important situations. Nevertheless, the opposing parties are pushing very hard, and they are endangering our Republic.

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