by Jon Sanders
Research Editor and Senior Fellow, Regulatory Studies, John Locke Foundation
The Wall Street Journal writes about an unusual check by the judiciary on the growing lawlessness of the executive branch under Pres. Obama, which has been openly flouting laws they don’t like or find inconvenient, including Obamacare.
The entire article is worth a read, but here are a few highlights:
President Obama asserted the unilateral power to “tweak” inconvenient laws in last Friday’s news conference, underscoring his Administration’s increasingly cavalier notions about law enforcement. So it’s good that the judiciary—a coequal branch of government, in case the Administration forgot—is starting to check the White House.
In a major rebuke on Tuesday, the D.C. Circuit Court of Appeals issued an unusual writ of mandamus, which is a direct judicial order compelling the government to fulfill a legal obligation. This “extraordinary remedy” is nominally about nuclear waste, writes Judge Brett Kavanaugh for the 2-1 majority, yet the case “raises significant questions about the scope of the Executive’s authority to disregard federal statutes.”
So ponder that one: A federal court is stating, overtly, that federal regulators are behaving as if they are a law unto themselves. Judge A. Raymond Randolph notes in a concurrence that former NRC Chairman Gregory Jaczko, who has since resigned, “orchestrated a systematic campaign of noncompliance.” If Mr. Jaczko worked on Wall Street he’d be indicted.
Judge Kavanaugh then offers some remedial legal education in “basic constitutional principles” for the President who used to be a constitutional law professor. … The executive has broad enforcement and interpretative discretion but not the wholesale authority to suspend core parts of laws, even ones he co-wrote.
All of this highlights that Mr. Obama is not merely redefining this or that statute as he goes but also the architecture of the U.S. political system. As with the judicial slapdowns on his non-recess recess appointments that the Supreme Court will hear next term, Judge Kavanaugh warns that endorsing the NRC’s legal position “would gravely upset the balance of powers between the Branches and represent a major and unwarranted expansion of the Executive’s power.”
The professors and pundits who fret about the Imperial Presidency go into hibernation when the President is a Democrat, so it is crucial that the courts reject Mr. Obama’s increasing contempt for constitutional limits.
That last line stings, or it ought to. The voluntary abdication of their oversight out of blatant service to party politics of the moment, without regard to the negative long-term effects on the country of the precedents they are allowing to set — and not just without their objection, but with their active engagement in trying to destroy those who do object — is one of the great shames of the 21st Century. There is not a Pastor Niemöller among them, just simpleton Parsons.