The Faithful Execution Clause
“[The President] shall take Care that the Laws be faithfully executed. . . .”
—The US Constitution, Article Two, Section Three
In the News
Pittsburgh-based US District Judge Arthur Schwab became, on December 16, 2014, the first federal judge to issue a ruling on the legality of Obama’s unilateral, executive action to change immigration law. The decision was part of a criminal case against a Honduran illegal alien, Elionardo Juarez-Escobar. Juarez-Escobar has been deported on multiple occasions, and is a beneficiary of President Obama’s open-border policy, in that he has been able to come back into the US and break its laws repeatedly at the implied invitation of the president. Juarez-Escobar faced charges of unlawful re-entry after being arrested for drunk driving. It is unknown how many Americans may have been injured or killed by this drunk driver over time, due to the deadly presidential policy of allowing criminals to cross into the US freely. Also unknown is how many Americans have been killed or harmed at the hands of others like Juarez-Escobar.
Because prosecutors in the case argued that Obama’s immigration policy was only meant to apply to civil proceedings, having no impact on criminal proceedings like that of Juarez-Escobar, Judge Schwab, who had other ideas, felt he had to rule on Obama’s policy of executive amnesty. After all, Obama’s executive action has provided incentives for criminals to return to the country. Schwab stated, in his 38-page ruling, that Juarez-Escobar was wont to benefit under Obama’s executive action that halts deportations for many illegal aliens. Obama’s executive action is in violation of the US Constitution’s separation of powers and its “take care clause,” Schwab said. The Obama Administration quickly issued a statement saying that the judge’s ruling would not be heeded in any way.
Many of President Obama’s executive actions have been in the form of executive orders. But it is now coming to light that Obama has also utilized executive memoranda towards the same ends. However, none of these executive actions are so much as even mentioned in the Constitution.
All presidents have issued executive orders, the first one to call it precisely that being President Lincoln. But such orders are extra-Constitutional and, as such, have no power to make new law. Nor do memos or any other kind.
The Purpose of an Executive Order
Presidents have historically used executive orders to clarify policies based on existing law or to instruct the government how to implement a given law. The issuing of an order should be no more than an effort to “take Care that the Laws be faithfully executed,” in accordance with Article Two, Section Three, of the US Constitution.
The Congress might make a new law, and the president might then assign specific departments to implement parts of that law, within whatever discretion the law gives him, but never in a manner that would go against the letter or spirit of the law. Obama’s use of “executive actions” to create new laws out of whole cloth has been alarming.
The Illegal Use of Prosecutorial Discretion
President Obama has chosen to make law by abusing his power of prosecutorial discretion, which is meant only for use on a case-by-case basis. When the president decides to use this power to exempt an entire class of people from being subject to a law, the class of people protected—illegal aliens, for example—then effectively can behave as if a new law has been passed giving them all immunity from prosecution—or amnesty.
Many liberals claim that conservatives are just whining about Obama’s “creative use” of prosecutorial discretion. But Obama’s executive action is not just a creative use of this power. It is an outright creation of new law, written solely by the executive. It is a prime example of what is known as “ruler’s law”—rather than the “people’s law” that is enshrined in our Constitution.
Why Exercise of Such Broad Discretion Actually Makes Law
Let us pretend that Ted Cruz, an advocate for the abolition of the Internal Revenue Service, has been elected to the presidency and has decided to use Obama’s Executive Amnesty as a precedent to issue his own executive action, under the aegis of prosecutorial discretion. Here is what a President Cruz could do: “I, President Ted Cruz, under my authority to use executive prosecutorial discretion, do hereby exempt from prosecution any American making between $15,000 and $15,000,000,000 (15 billion) annually who fails to pay income taxes.”
Or perhaps a President Rand Paul, who might wish to rid our republic of the Federal Reserve’s monopoly to print money, could issue an order, memorandum, or what-have-you, to say this: “I, President Rand Paul, under my authority to use executive prosecutorial discretion, do hereby exempt from prosecution any bank of the United States that wishes to issue its own gold- or silver-backed currency for the people to use for the payment of all debts, public or private.”
The Ted Cruz executive action would effectively repeal the US tax code. And with no money coming into the US Treasury Department, as a result of President Cruz’s executive action, the Congress would be forced to act quickly to pass a new tax law favored by the president, in order to get funds coming into the treasury again.
The Rand Paul executive action would be the equivalent of passing a law allowing banks to create their own currencies to compete with the Fed’s fiat currency that has been devalued by 98% from 1913 to 2013, through inflationary practices.
The Tyranny of Executive Caprice
In a scofflaw presidency, genuine laws become things that are utilized as political weapons to target the political enemies of the president. Friends, followers, and fellow Democrats, on the other hand, receive get-out-of-jail-free cards. Obama writes out favors for his cronies in the form of extra-legal executive actions, but will then see to it that the legitimate laws that are still on the books are used to target his political foes—tyranny plain and simple! If a president is creative, he can come up with all manner of executive writs to create or repeal laws, merely by virtue of how they choose to target, or exempt, entire groups for, or from, prosecution.
If a general consensus ever forms that a law does not work the way the people want it to, then the law becomes subject to modification or repeal, according to Constitutional rule of law. The president’s proper role is to uphold his Oath of Office and defend the Constitution by faithfully executing the legal processes written therein as well as the laws which have been made by following them.
The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by EagleRising.com