The President’s promise to transform America is one of the few he has kept - perhaps the only one. I don’t like his work product in the least, yet in spite of the known record of the President and the Democratic party leaders (Harry Reid, for example) to foment nonsensical hatred towards constitutional conservatives with descriptions like “anarchists,” “terrorists,” “haters of government,” and the like, I will attempt to avoid pejorative language while explaining the conclusion implicit in the headline.
On June 25, 1998, six Justices of the Supreme Court handed down a very important decision. Justice John Stevens wrote the opinion for the majority in the case of Clinton vs. New York, which included the likes of Justices William Rehnquist, Anthony Kennedy, David Souter, Clarence Thomas and Ruth Bader Ginsburg. Those of you who follow our High Court’s rulings will surely admit that is a rather odd bunch to reach agreement on a disputed constitutional question. You can download and read the “ELLionized” opinion (and discover what that means) by clicking on case number “2” on the “Supreme Court Decisions” page of our website at www.ellconstitutionclubs.com.
President Bill Clinton achieved the goal of numerous past presidents when Congress passed the Line Item Veto Act that became effective on January 1, 1997. Pursuant to the authority given to him in that Act, Clinton canceled a taxing provision and a spending provision. Those that were harmed by his “line item vetoes” challenged the constitutionality of the Act and won. Why? Giving the President the right to modify a taxing or spending bill seems like a good idea. Right?
Before answering that question, let’s begin with a description of three forms of government. (1) In a “representative democracy,” the majority will of elected representatives rule and minorities are crushed in the process. We are not a representative democracy. (2) In a “dictatorship,” one person rules with unlimited power. We are not so designed. (3) We are a “republic” where the majority will of elected representatives rule except where that will exceeds the limits of the power granted to them in the blueprint - the Constitution. You see, the Framers believed that unlimited power ultimately leads to tyranny and corruption.
So, what does Clinton vs. New York have to do with President Obama?
The Presentment Clause of the Constitution (Article I, §7, clause 2) fundamentally provides the method of enacting laws. When both Houses of Congress reach agreement on a bill, they send it to the President who then has two choices. He can sign the bill into law or he can veto the bill. However, the Constitution does not permit him to usurp the power of Congress by enacting those provisions of the bill he likes and vetoing those he does not like.
The Federal District Court had ruled that Clinton’s cancellations did not conform to the constitutionally mandated procedures for the enactment of laws in two respects. “First, the laws that resulted after the cancellations ‘were different from those consented to by both Houses of Congress.’ Moreover, the President violated the Constitution ‘when he unilaterally canceled provisions of duly enacted statutes.’ As a separate basis for its decision, the District Court also held that the Act ‘impermissibly disrupts the balance of powers among the three branches of government.’”
Let’s take a close look at what Justice Stevens said in the majority opinion and what Justice Kennedy said in his concurring opinion.
Justice Stevens: “There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.”
Justice Kennedy: “The principle object of the Line Item Veto Act...was not to enhance the President’s power to reward one group and punish another, to help one set of taxpayers and hurt another, to favor one State and ignore another. Yet these are its undeniable effects. The law establishes a new mechanism which gives the President the sole ability to hurt a group that is a visible target, in order to disfavor the group or to extract further concessions from Congress. The law...enhances the President’s powers beyond what the Framers would have endorsed...By increasing the power of the President beyond what the Framers envisioned, the Line Item Veto Act compromises the political liberty of our citizens, liberty which the separation of powers seeks to secure.”
In 1998, the High Court struck down the Line Item Veto Act because, by its terms, it gave the President the unilateral power to change the law - it “compromised political liberty which the separation of powers” of the three branches of government seeks to secure.
This President has unilaterally amended Obamacare fourteen times...Oops! Since my original draft, it appears that figure is now up to nineteen! To name a few, he has favored his friends with exemptions, delayed the employer mandate for a year and, with the stroke of a pen, has carved out privileges for Congress. President Clinton at least had authority from Congress (albeit proven to be unconstitutional) to modify the law they had sent to him. President Obama has made these changes on his own – without any Congressional authority whatsoever.
This isn’t the first time he has quenched his thirst for power by satiating himself with your freedom. When Congress wouldn’t give him the Dream Act, he unilaterally signed an executive order accomplishing much of its purposes.
Of course, other Presidents exceeded their constitutional power on occasion, but for the most part, these instances were related to war powers. Presidents Lincoln, Truman and FDR come to mind. Health care and immigration have nothing to do with the exigencies of war.
I know. Obamacare withstood constitutional challenge. But it wasn’t this challenge --- and it wasn’t this current version. Obama’s Law changes from day to day.
In my estimation, the manner in which Obamacare was passed, the favoritism flaunted in its implementation and the idea that the IRS will be in charge of our health is an affront to freedom. But there is a much more important point to glean from the wisdom of Justices Stevens and Kennedy in the Clinton case. Assuming you love this President and all of his policies, if you believe America will survive the predilections of a dictator, you are living in a dream world, for as the Framers put it, unlimited power is destined to result in corruption and tyranny. On the other hand, perhaps your idea of how America should be transformed agrees with his. If so, your dream has come true.
Tad Armstrong is an Edwardsville, Illinois, lawyer, founder of ELL Constitution Clubs (www.ellconstitutionclubs.com) and author of “It’s OK to Say ‘God.’”