by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
For a Harvard Law School graduate and former “constitutional law professor,” President Obama seems surprisingly confused about federalism and the separation of powers under the Constitution.
On April 23rd, at a “town hall” meeting in London, he called on a student who said:
I know that in North Carolina … with the bathroom bill … people are being forced … to produce birth certificates to prove their gender in order to go to a toilet … perhaps you could elucidate as to what you can do to go beyond what has been accepted … in including people who fit outside the social norms.
Rather than correct the student’s misapprehensions about HB2 (“the bathroom bill”), the President replied:
The challenge we’ve had is North Carolina, the law that comes up, for example, that’s a state law. And because of our system of government, I can’t overturn on my own state laws unless a federal law is passed that prohibits states from doing these things. And with the Congress I currently have, that’s not likely to happen.
Ten days later, however, his assistant attorney general served Governor Pat McCrory with a letter threatening to take legal action against the State of North Carolina unless the Governor provided swift confirmation “that the State will not comply with or implement H.B.2.”
This is not the first time the President’s actions have contradicted his words regarding the limits of executive power. Soon after he was elected he said:
The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.
Nevertheless, in 2011, with no Congressional consent or approval of any kind, he unilaterally authorized an attack on Libya, despite the fact that Libya did not pose an actual or imminent threat to the United States. Indeed, Libya did not pose any kind of threat to the United States at all.
During his first five years in office, Obama said—repeatedly—that he was legally obligated to execute US immigration law and could not simply suspend deportations by executive decree. For example, on March 28, 2011 he said:
With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed … we’ve got three branches of government. Congress passes the law. The executive branch’s job is to enforce and implement those laws. And then the judiciary has to interpret the laws.
There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.
Nevertheless, in November of 2014 he announced that, notwithstanding the “laws on the books,” his administration was suspending deportation for millions of illegal aliens and making them eligible for various benefits including work authorization.
Maybe he’s not confused. Maybe he knows perfectly well what the Constitution says about presidential power and its limits. Maybe he just doesn’t care.