By Iain Murray • National Review Online
Anyone who studies the power bureaucrats have over ordinary Americans’ lives swiftly comes to the realization that the courts, which are meant to redress grievances, will be of little help. That’s because of a doctrine the Supreme Court adopted in the 1984 case Chevron USA Inc v. NRDC. The doctrine, known as Chevron Deference to those in the know, states that courts should usually defer to executive agencies when it comes to the interpretation of ambiguous statutes, of which there are many. A further doctrine, known as Auer after the case Auer v. Robbins, holds that courts should defer to agencies in how they interpret their own regulations.
The rationale behind these decisions is well explained by Harvard’s Adrian Vermeule in a law review article published today on the subject of deference and due process. He points to the argument that “on grounds of both expertise and accountability, agencies are better positioned than courts to interpret governing statutes.” He also points to a growing body of case law incorporating Chevron principles and to the “Court’s recent emphatic pronouncement that Chevron may actually grant agencies the power to determine the scope of their own jurisdiction.” Continue reading
They did it again.
The Supreme Court of the United States effectively rewrote the text of Obamacare to save the legislation.
By a 6-3 majority, the Court upheld the Fourth Circuit’s decision in King v. Burwell and decided that federal subsidies were available on state Obamacare exchanges, even though the text of the so-called Affordable Care Act said that such subsidies were only available on “State” exchanges.
The majority acknowledged that the word “State” was, at best, “ambiguous.” And it rejected the idea that an executive agency, in this case the Internal Revenue Service, could decide the meaning of that term. Continue reading
Abuse of executive powers threatens democracy
by Adam Kredo • Washington Free Beacon
President Barack Obama’s abuse of executive power privileges has essentially frozen Congress out of the government for the past six years, leading to foreign policy disasters across the globe and systemic domestic problems, according to Sen. David Perdue (R., Ga.), who blasted the White House’s abuse of power during a speech on the Senate floor Monday evening.
Perdue, in his first wide-ranging speech from the Senate floor, blasted what he said is the Obama administration’s unprecedented abuse of the presidency and failure to set America on stable path.
“Unbridled use of executive orders and regulatory mandates has basically allowed this president to run the country without Congress for the past six years,” Perdue said, according to text of his speech. Continue reading
by Jonathan S. Tobin • Commentary
When conservatives protested President Obama’s attempt to go around the Constitution and rule by executive orders rather than with the consent of Congress, his defenders had a ready answer. While they insisted that Obama’s fiat granting amnesty to five million illegal immigrants did not exceed his authority, they also countered by saying that the president had actually issued far fewer such executive orders than that of President Bush. But, as USA Today noted last week, focusing only on executive orders while ignoring the far more numerous executive memoranda issued by this administration that have the same effect as law, the press and the public have vastly underestimated the extent of how far he has stretched the boundaries of executive power. If anything, this president’s effort to create a one-man government may have gone farther than we thought. Continue reading
President Obama has issued a form of executive action known as the presidential memorandum more often than any other president in history — using it to take unilateral action even as he has signed fewer executive orders.
by Gregory Korte • USA Today
President Obama has issued a form of executive action known as the presidential memorandum more often than any other president in history — using it to take unilateral action even as he has signed fewer executive orders.
When these two forms of directives are taken together, Obama is on track to take more high-level executive actions than any president since Harry Truman battled the “Do Nothing Congress” almost seven decades ago, according to a USA TODAY review of presidential documents. Continue reading
by Terry Eastland • The Weekly Standard
With his aggressive executive action on immigration, President Obama has struck a constitutional nerve in the body politic. The first lawsuit challenging the president’s action was filed last week by a coalition of 18 states led by Texas. Oklahoma is about to file, and other states may do so as well.
As for the two houses of Congress, House Judiciary Committee chairman Robert Goodlatte told The Weekly Standard that the House “should litigate the issue.” Probably a majority of his colleagues agree. Goodlatte expects that soon after the new Congress is sworn in, the House will authorize the filing of a complaint that the new Republican Senate will then vote to join. Continue reading
by Editorial Board • U-T San Diego 
There is not likely to be any comprehensive reform of this country’s broken immigration system during Obama’s remaining two years. There probably won’t be much of anything else the next two years, either. That is the unfortunate but real import of the executive order President Barack Obama issued last week shielding up to 5 million unauthorized immigrants from deportation. It represents a monumental failure of national leadership.
The history of the contentious immigration issue over the past six years is instructive to where we are today.
It was in July 2008 that candidate Obama pledged to make comprehensive immigration reform “a top priority in my first year as president.” He broke that promise in 2009, never even attempting immigration reform at the time his popularity and power were at their greatest. Continue reading
The president who began as a champion of the legislature’s prerogative to declare war has morphed into Napoleon.
by Charles C. W. Cooke • National Review
Asked earlier today how long he expected the bombing of Syria to last, Lieutenant General William C. Mayville Jr. advised reporters to think “in terms of years.” “Last night’s strikes,” Mayville confirmed, “were only the beginning.” A mile or so away, on the White House lawn, Barack Obama struck a similarly defiant note. “We’re going to do what is necessary to take the fight to this terrorist group,” the president explained, before assuring those present that the United States was but one part of a global alliance that stood “shoulder to shoulder . . . on behalf of our common security.” “The strength of this coalition,” Obama added, “makes clear to the world that this is not just America’s fight alone.” This much, at least, was true. Among the nations that have signed on to the attacks are Bahrain, Qatar, Saudi Arabia, Jordan, and the United Arab Emirates — all vital accomplices in the winning of hearts and minds. And yet, for all the cosmopolitanism, one crucial ally was conspicuously missing from the roster of the willing: the Congress of the United States. Continue reading
by Seth Lipsky • New York Post
There are three ways something can become what the US Constitution calls the “supreme law of the land.” It can be made part of the Constitution by amendment, it can be passed by Congress as a law or it can be ratified by the Senate as a treaty.
President Obama can’t get his climate-change agreement made supreme law of the land by any of those constitutional routes. Not even close. The Republican House doesn’t want it. The Democratic Senate won’t act.
That’s because the people don’t want it. They’re no dummies. Even in drought-stricken California, the Hill newspaper reports, Democratic candidates for Congress avoid the climate-change issue.
This is driving Obama crazy. Continue reading
by Chuck Vinch • Army Times
The Defense Department broke the law when it transferred five Taliban detainees from the prison at Guantanamo Bay, Cuba, to Qatar in exchange for former prisoner of war Army Sgt. Bowe Bergdahl, the Government Accountability Office said Thursday.
In a seven-page opinion, the GAO said a provision of the 2014 Defense Appropriations Act bars defense officials from using taxpayer funds to transfer any prisoner from Guantanamo unless the secretary of defense gives Congress at least 30 days’ advance notice. Continue reading
There must be accountability for the CIA’s snooping on senators
by the Editorial Board, New York Daily News
Long spook story simple and short: The CIA got caught spying on the senators charged with overseeing the spies. And then got caught again lying about it.
This is bad news for anyone who takes seriously the separation of powers enumerated in the United States Constitution.
Briefly, Senate Intelligence Committee Democrats have spent five years working on a report about the CIA’s post-9/11 “enhanced interrogation” techniques. The panel is expected to release a highly critical unclassified version this month. Continue reading
by Brendan Bordelon
Liberal law professor Jonathan Turley warned a panel of lawmakers that they “must act” in support of a lawsuit against President Barack Obama for executive overreach or face “self-destruction” as a deliberative body.
Turley appeared as a witness for the House Rules Committee on Wednesday as that panel considered advancing a proposed lawsuit that would check the White House’s recent moves to cut out Congress on issues like health-care reform, immigration and drug policy.
The George Washington University law professor — who supports many of President Obama’s policies but opposes their unilateral implementation — expressed his support for the lawsuit and his belief that Congress, as a coequal branch of government, has the standing to sue to presidency. Continue reading
by Terence P. Jeffrey
Not counting instances when he quoted a letter from a citizen or cited dialogue from a movie, President Barack Obama used the first person singular–including the pronouns “I” and “me” and the adjective “my”–199 times in a speech he delivered Thursday vowing to use unilateral executive action to achieve his policy goals that Congress would not enact through the normal, constitutional legislative process.
“It is lonely, me just doing stuff,” Obama said at the speech in Austin, Texas, according to the official transcript and video posted on the White House website. Continue reading
by George F. Will
What philosopher Harvey Mansfield calls “taming the prince” — making executive power compatible with democracy’s abhorrence of arbitrary power — has been a perennial problem of modern politics. It is now more urgent in the United States than at any time since the Founders, having rebelled against George III’s unfettered exercise of “royal prerogative,” stipulated that presidents “shall take care that the laws be faithfully executed.”
Serious as are the policy disagreements roiling Washington, none is as important as the structural distortion threatening constitutional equilibrium. Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity and qualitatively different. Continue reading
by Jonathan S. Landay, Ali Watkins and Marisa Taylor
In contrast to public assertions that it supports the committee’s work, the White House has ignored or rejected offers in multiple meetings and in letters to find ways for the committee to review the records, a McClatchy investigation has found.
The significance of the materials couldn’t be learned. But the administration’s refusal to turn them over or to agree to any compromise raises questions about what they would reveal about the CIA’s use of waterboarding and other harsh interrogation techniques on suspected terrorists in secret overseas prisons. Continue reading