Obama Is Legally Allowed to Enforce—or Not Enforce—the Law

Amazingly, a professor at the University of Chicago’s law school wrote this in the New Republic, and he’s serious. Yet he cites not a single clause from the Constitution, not a single phrase, to support his…thesis.

Eric Posner wrote, among other things,

Would President Barack Obama, by refusing to enforce the immigration laws against millions of undocumented immigrants, be engaging in “domestic Caesarism,” as Ross Douthat charges [in a New York Times op-ed]?

…if he chooses not to enforce immigration laws against “up to half the country’s population of illegal immigrants,” as Douthat claims, the president wouldn’t be doing anything different from what his predecessors have done (or rather, not done).

There’s that Progressive morality, again. The rightness or wrongness of a behavior isn’t at all inherent in the behavior. No, the behavior’s morality is determined solely by whether someone else did it first or is doing it also.

And

The president cannot suspend or change the law: when he leaves office, the law will remain the same as it was, and the next president will be free to enforce it or not.

No, no president, nor Obama nor any “next president,” is free to not enforce the law (nor has any past president been, although past ones have been guilty of this, also; Posner is right on this much). Here’s what Article II, Section 3, has to say on the matter:

he shall take Care that the Laws be faithfully executed

Full stop. There’s nothing in there about taking Care if he feels like it or taking Care not to faithfully execute.

And

The executive branch spends a lot of time not enforcing laws. Congress has illegalized an enormous amount of activity without giving the president the resources to enforce the laws, so the executive has no choice but to make a list of priorities and devote its attention to law violations that, in its opinion, are the most serious.

with

Nearly all of this non-enforcement takes place with implicit congressional acquiescence….

This merely means Congress may be failing its tasks, too (“may be:” Congress has no obligation to allocate money to be spent in amounts a president might demand. A case can be made, in fact, that Congress allocates too much as it is); it in no way legitimizes Presidential lawlessness. Certainly, a lack of resources does increase the difficulty for a President. However, the difficulty in no way legitimizes choosing not to enforce.

This is, also, a straw man. This President also chooses not to enforce laws for which he has the resources: the Business Mandate and the Individual Mandate of the ACA; border security; delivery of subpoenaed documents to the Congress that subpoenaed them, including Benghazi, Fast and Furious, the IRS; refusing to comply with Congressional oversight; the list runs on.

Then there’s this:

People like Douthat wrongly think that separation of powers means that the president must do what Congress decides. That’s not the principle of separation of powers….

This is another straw man. The Constitution gave the President executive power for the purpose, among others, to take Care that the Laws be faithfully executed, not to choose among them to enforce only those convenient to him. In this guise, the President must, indeed, do what Congress decides: he must enforce the laws that they pass—and that become actual law when he signs the bill and thereby enacts it, or when they pass it again, over his veto. To do otherwise is the principle of Executive supremacy, embodied in monarchies like an earlier Britain’s, against which we rebelled some years ago.

And this:

If Congress cannot pass any laws because of gridlock, then it has violated its obligations under the Constitution, and accordingly the president has the right to use his enforcement powers to implement policies that serve the public interest.

Of course, a President has no such right. There’s that pesky Art II, Sect 3 clause, after all, which also contains no syllable of authorization for a President to create “law” on which he might then presume to act. Further, in the entirety of that second Article of our Constitution, there’s no such “right,” or power, or authority identified.

Above all that, the President has no authority to decide what “policies…serve the public interest.” That’s the province of We the People, who are the public, and we make those determinations through our elected representatives in the Congress.

Posner’s piece goes on, but you get the idea.

Another Reason

…to disband the NLRB.

McDonald’s Corp could be treated as a joint employer with its franchisees in labor complaints, according to a National Labor Relations Board legal determination….

The relationship between a franchisee and the parent franchisor varies in the details of the franchise contract. However, the general nature of the reputation is quite limited. The franchisee gets to use the franchisor name and the franchisor’s marketing and accounting assistance, and it gets the franchisor’s market power in holding down the cost of supplies. In return, the franchisee is bound to the franchisor’s rules regarding the use to which the franchise name is put and the nature, quality, and standardization of the product being sold. The franchisee also is required to refrain from activities that would result in denigration of the franchise name.

There’s nothing in there concerning hiring or employment practices, or anything else involving labor decisions, that tie the franchisor to the franchisee. Existing labor law covers the franchisee’s hiring and employment.

The NLRB knows this, of course, which makes its ruling even more pernicious.

As Predicted

I predicted this at the end of last week.

Iran agreed to new steps to contain its nuclear work in exchange for additional sanctions relief from the US as the two sides extended negotiations for four more months to reach a comprehensive deal.

Under Friday’s deal, the US will give Tehran access over the next four months to an additional $2.8 billion in oil export revenues frozen abroad by American sanctions, Secretary of State John Kerry said.

In return for this additional money, this speaking fee for the Iranian negotiators,

Iran agreed Friday to take further measures to curtail the most advanced parts of its nuclear program.

Iran also agreed to dilute its stock of up to 2% enriched uranium into natural uranium, Western officials said, which could slightly lengthen the time it would take to spin that into highly enriched fuel for a nuclear weapon.

And we believe them. Certainly the guy who currently sits in the Secretary of State’s chair believes them. John Kerry said, in announcing this latest American concession,

Let me be clear, Iran will not get any more money during these four months than it did during the last six months.

In other words and as noted above, Iran is going to get more money: the $8 billion to which it got access “the last six months” is only an upper bound to that additional money; the released $2.8 billion may not be the last of it.

One last thing: here’s what President Barack Obama said last January in his State of the Union address when he described the just-expired 6 months of talks that were, then, just getting started:

If Iran’s leaders do not seize this opportunity, then I will be the first to call for more sanctions, and stand ready to exercise all options to make sure Iran does not build a nuclear weapon.

The opportunity is passed. It expired Friday. But, then, that was just a deadline.

The MH17 Shootdown

That this was done by the Ukrainian “separatists” (in quotes because, as some commentators are beginning to recognize, these…people…aren’t interested in separation from Ukraine so much as they are interested in uniting with Russia) with Russian SAM systems and personnel assistance is by now quite clear.

Yet, as The Wall Street Journal put it over the weekend,

The greatest foreign-policy failing of this Presidency is that he refuses to see that the world has bad actors. He can explain the consequences of aggression as he did on Friday, but he refuses to admit or explain that certain countries are responsible for those consequences and must be opposed.

Ronald Reagan didn’t flinch this way, and neither does Mr Obama’s own UN Ambassador.

Barack Obama, though, is no Ronald Reagan.

The Word of a Union

The UAW broke its pledge to cease organizing activity at the Chattanooga auto plant that rejected unionization, announcing on Thursday afternoon that it would form a voluntary union for factory workers.

The union signed a neutrality agreement with the German auto manufacturer that gave organizers an advantage during its campaign.

However, that agreement also contained a provision barring the union from any organizing activity for one year following the vote.

The union decided to break that pledge on Thursday, announcing the formation of a new local that would allow workers to join voluntarily.

Who can trust a union’s promise?