220px-US_Capitol_Building_at_night_Jan_2006248px-WhiteHouseSouthFacade.JPGBelow is my column in Sunday’s Los Angeles Times. I recently testified on this issue in three separate hearings before Congress (here and here and here). Last week, President Obama proceeded to add yet another suspension order to the health care law. It is part of a broader array of such unilateral actions that raise disturbing constitutional issues under the Separation of Powers. This goes beyond the usual discretion in “filing in the blanks” or ambiguities of laws. These were not delegated or unanswered questions. These were largely core issues — dates and coverage issues — that were the subject of intense congressional debate. Indeed, in a number of cases, President Obama asked for reforms and was denied the changes by Congress — only to order the very same reforms by executive action. That is why this is not an administrative law but a constitutional law issue in my opinion.

Recently, a bizarre scene unfolded on the floor of the House of Representatives that would have shocked the framers of the Constitution. In his State of the Union address, President Obama announced that he had decided to go it alone in areas where Congress refused to act to his satisfaction. In a system of shared powers, one would expect an outcry or at least stony silence when a president promised to circumvent the legislative branch. Instead, many senators and representatives erupted in rapturous applause; they seemed delighted at the notion of a president assuming unprecedented and unchecked powers at their expense.

Last week, Obama underlined what this means for our system: The administration unilaterally increased the transition time for individuals to obtain the level of insurance mandated by the Affordable Care Act. There is no statutory authority for the change — simply the raw assertion of executive power.

The United States is at a constitutional tipping point: The rise of an uber presidency unchecked by the other two branches.

George-W-BushPresident_Barack_ObamaThis massive shift of authority threatens the stability and functionality of our tripartite system of checks and balances. To be sure, it did not begin with the Obama administration. The trend has existed for decades, and President George W. Bush showed equal contempt for the separation of powers. However, it has accelerated at an alarming rate under Obama. Of perhaps greater concern is the fact that the other two branches appear passive, if not inert, in the face of expanding executive power.

James Madison fashioned a government of three bodies locked in a synchronous orbit by their countervailing powers. The system of separation of powers was not created to protect the authority of each branch for its own sake. Rather, it is the primary protection of individual rights because it prevents the concentration of power in any one branch. In this sense, Obama is not simply posing a danger to the constitutional system; he has become the very danger that separation of powers was designed to avoid.

A glance at recent unilateral moves by Obama illustrates how executive power has expanded, largely at the cost of legislative power.

The suspension of a portion of the ACA is only the latest such action related to the healthcare law:

• The heart of the healthcare law was a set of minimum requirements for insurance plans. After Obama was embarrassed by the cancellations of millions of nonconforming plans (when he had said no one would lose a plan they had and liked), he created first one temporary exemption and then, last week, another, adding two years to the compliance deadline set by law.

• On his own authority, Obama also chose other dates for compliance with the employer mandate.

• Congress ended a subsidy for members of Congress and their staffs so that they would obtain insurance under the ACA on the same terms as other citizens. Obama ordered that the same subsidies would continue, in defiance of the law.

The president has shown similar unilateral inclinations in other areas:

• He asked Congress to change the law to exempt certain classes of immigrants — particularly children — who are in the U.S. illegally from deportation. Congress refused to pass the so-called Dream Act, but Obama proceeded to order agencies to effectively guarantee the very same changes.

• The administration ordered all U.S. attorneys to stop prosecuting nonviolent drug crime defendants who would be subject to what Atty. Gen. Eric H. Holder Jr. called draconian mandatory minimum sentences. The new rule effectively negates sentencing provisions set by Congress.

• Obama opposed the No Child Left Behind Act and in effect nullified it through waivers of his own making.

• For years, the Wire Act was interpreted to mean that Internet gambling was prohibited, which some states and businesses opposed. The Obama administration declared the act would now be treated as having the inverse meaning.

Some of these changes are admittedly close questions, and federal agencies are given considerable discretion in crafting regulations.

For example, the Obama administration repeatedly asked Congress to limit greenhouse gases but was rejected. The administration proceeded to create its own national regulation of the gases along the very lines debated and rejected in Congress. Yet the new regulations are based on a broadly written Clean Air Act and were upheld in part by the Supreme Court. However, this major new regulatory scheme was still initiated without any approval of Congress.

Not even the power of the purse, which belongs exclusively to Congress, is sufficient to deter the White House. The Obama administration took $454 million from a fund established to help prevent illness and put the money instead toward paying for the federal health insurance exchange. Even leading Democratic members denounced this as “a violation of both the letter and spirit of this landmark law.”

I happen to agree with many of the president’s policies. However, in our system, it is often more important how we do something than what we do. Priorities and policies and presidents change. Democrats will rue the day of their acquiescence to this shift of power when a future president negates an environmental law, or an anti-discrimination law, or tax laws.

To be clear, President Obama is not a dictator, but there is a danger in his aggregation of executive power.

Our system is changing in a fundamental way without even a whimper of regret. No one branch in the Madisonian system can go it alone — not Congress, not the courts, and not the president. The branches are stuck with each other in a system of shared powers, for better or worse. They may deadlock or even despise one another. The founders clearly foresaw such periods. They lived in such a period.

Whatever problems we face today in politics, they are of our own making. They should not be used to take from future generations a system that has safeguarded our freedoms for more than 200 years.

Jonathan Turley, a professor of law at George Washington University, recently testified in Congress on the growing violations of the separation of powers.


  1. I think this snippet says it all: “the other two branches appear passive, if not inert, in the face of expanding executive power.” That’s being kind, especially considering the use and support of unbridled and unconstitutional NSA/CIA/FBI powers.

    But think about it. This coming election season, Congress, especially the GOP, can just blame Obama for everything. They don’t have to take responsibility for what is happening in DC, since they are passive and inert. On the other hand, when it comes to the least fortunate, the inert GOP with passive Democrat support were able to cut food stamps to millions of poor, cut benefits to veterans, and cut unemployment insurance to 4 million long term jobless middle class and poor. Congress can act harmfully when it wants to, but taking Constitutional responsibility is another matter..

  2. Well, you are right on Mr Turley and the Ds & the Rs continue to bicker, oblivious to the fact that they soon may be irrelevant.

  3. “When the president does it, that means that it is not illegal ”

    Apparently we have a constitutional scholar who has identified a new principle of government: If the congress does not impeach that means that it is not illegal.

    I don’t see how anyone can feel comfortable when the machinery of government is harnessed to the will of a particular person or group.

    I deplore the refusal of congress to compromise. But unilateral action by the president cannot be the right answer.

  4. Recently I have been reading the musings of the early 20th century writers in regard to the atavism of common law in Administrative procedural issues, Pound, Freund, Frankfurter, even Holmes. The idea of a progressive adjustment in law to allow, well heeled, well studied intellectual elite facing any contemporary problem, reign to use their expertise to advance societal goals. Being of the ‘middle rank’, I seem consternated by contrasting the Brig Aurora 11 US 382 to City of Arlington Texas v FCC. The underlying idea is of course to encourage the ‘evolving standards of decency’,to adjust to an ever more complex world.

    Not too long ago I read, with horror about a number of young women sent back into a burning building. They were not properly dressed, and the law is the law. A type of natural law that evolved in the Muslim world. It was quietly condemned as 12th century logic out of place in the modern world.We in contrast are of positive law, leaning forward, more advanced..
    A few years later, as a matter of fact within the last few weeks, a young women was compelled by circumstances to leave a school building, a threat existed. She was wet and the ambient temperature freezing. Administrative rules kept her from returning for a jacket, and more regulations proscribed she could not sit in a teachers car…She suffered cold an possible frost bite,

    Stare decisis seems to able to convert our system into a newer more advanced system, as Prof Turley so prudently cautions us to be aware of.
    How advanced are we considering the young lady shivering in the cold ?? Are we now a ‘cabinet style’ government as Woodrow Wilson urged, and how did it happen, and under whose authority ? Does the new formula of our founding fall into desuetude ?? The old formula, prior to the DOI was, Power shall allow liberty, we replaced that with, ‘Liberty shall grant power’. Have we flipped the formula back again ??

  5. Thank you Professor Turley for having the courage and commitment to the Constitution to recognize the damage being done to our system of government, to recognize that the end does not justify the means even when it is something that you politically agree with. As you have said Obama will not be President forever but the damage he is doing will last.

    I wish you would expand your argument but am pleased with the fight for the Constitution you are making.

  6. “many senators and representatives erupted in rapturous applause; they seemed delighted at the notion of a president assuming unprecedented and unchecked powers at their expense”

    The tipping point was reached in the 1950’s. Rule by executive fiat is part of the growth of the managerial society that began to accelerate in the 1950’s.

    C. Wright Mills wrote on it extensively.

    With the rise of the military industrial complex, decisions affecting the direction of the country and the economy were increasingly made by military generals acting as politicians, business executives taking non-elected political positions in government, and appointees in executive departments making policy decisions.

    The FDA, FCC, FTC, the cabinet, TSA, DHS, all make policy decisions, but none of them are staffed by elected office. Somebody like Dick Cheney can pass from Secretary of Defense to CEO of Haliburton to Vice President not because his experiences in one position directly qualify him for another, but because he is part of a self-selecting affinity group with a shared managerial ethos.

  7. Of course, I’m just an ignorant, uneducated bystander with no voice in America. Here’s the way I see it and I’m sure I’m called “FAR RIGHT”. It’s been said the way to take America is through their children. Carter took Ed. away from the States. Indoctrination is a slow insidious process but after years go by it matures. People have been placed in government with the same Communist/Socialist ideology and have just been waiting for the right President. It so happens a Senate is filled with the same ideology. It happens the President is Black, from an “entitled” class and the best attribute he has is….he’s a d*** good liar. The media have ties to many of the Party in power so they carry the message and truth is denied.
    This would make a wonderful movie IF it weren’t true. We are in the process of a Communist/Socialist takeover which includes the destruction of American’s economy, Health and moral ethics and values. After all, you must destroy before you can build it back the way you want it.
    What about the Republican House? In this day and time all both Parties think about are keeping their seat in Congress. Fighting back “might” lose them a vote. They are as corrupt in that respect as the Communist/Socialist Democrats. Who’s the loser? A FREE AMERICA!

  8. Underlying all of this is a direct collusion between branches of government. There is only gridlock when it is advantageous to the oligarchy to have gridlock. Democrats and Republicans work quite well together to pass legislation which benefits their ownership class. They will also play good cop/bad cop as needed so that people will not recognize their essential collusion. In the meantime what is actually happening is the aggregation of power with the executive on behalf of the oligarchy. That’s why it does not matter if a president is R or D– they are actually working for the oligarchy. It benefits the oligarchy to have an imperial president. For everyone else, the imperial president is a disaster.

    It seems almost impossible for committed partisans to recognize what is actually happening in our nation. There seems to be an almost religious need to have belief in one’s party. I think that political parties have merged with or replaced the role of religion in many peoples’ lives. People are deriving “moral” and a sense of value by belonging to parties, to “red” or “blue” states. Upon that rock lies a sense of moral superiority over “the other”, the unenlightened religious members of the supposed opposing religion.

    Therefore, as people are taking their meaning and value from parties, it makes seeing through them extremely difficult. But we must. The protection of all that the Constitution demands, means the willingness to protect the other; even the hated, unenlightened member of the “opposing” religion.

    The way out, if it is not too late, is to be for the rights of all, no exception.

  9. I read the LA Times when I’m out here and was pleased to read this good column yesterday, in 80 degree temps!

  10. @jill

    What we need is for everybody in America to come together, end the partisanship, and vote for my team.

    With politics so polarized, the only solution seems to be for more people to vote for my team. Things will be less polarized if more people vote for my team.

  11. This column should be made required reading for every member of each and every citizen should send a copy to their rep. With the appropriate comment. Get off your dead a– and protect our rights and constitution.

  12. Joe D, You’re assuming a fact not in evidence, that being people in Congress can read. We know none of them read Obamacare. Pelosi used to be able to read, but all that Botox has blinded her.

  13. “No one branch in the Madisonian system can go it alone.” No, but it is easy to imagine one branch turning the other two branches into puppets. The reason it is easy to imagine that is that we can see it happening right now before our eyes.

    The pity is that we see it happening not because a strong man is dominating the other two branches, but because those other two branches are emsculating themselves for what they see as self preservation. No longer able to make popular decisions in the face of impossibity, and unwilling to make necessary decisions in the face of unpopularity, they make no decisions at all and defer to an increasingly imperial president.

  14. On March 18, 2013, Health and Human Services (HHS) Secretary Kathleen Sebelius announced that an estimated 71 million Americans who had private health insurance had coverage for preventive health care, such as a mammogram or flu shot, in 2011 & 2012 as a result of the Affordable Care Act. “No longer do Americans have to choose between paying for preventive care & groceries,” Sebelius said.

    The problem is that preventive services, which don’t require a copay or a deductible be met, & which are often roped in as part of a routine physical, include only a specific list of checks & screenings. But go outside those bounds & complain about your arthritis or constipation, & you may get a bill for an office visit. Put another way, you may have to pay if the preventive consultation isn’t the primary purpose of your visit or if your doctor bills you separately for the preventive service & the office visit. If your doctor is an out-of-network provider, you may be charged a fee. In fact, you may have to foot the whole bill.

    — MainStreet

  15. Wow, what a powerful statement from Prof Turley.
    It truly takes guts to make such a forceful public statement in this political environment.
    Even I agree that some of the fiat orders from Obama are good things from a libertarian POV, but however good they may be, what is good in the instant can be just as instantly taken away, and it lays the groundwork for any ad hoc thing a president might feel he wants.
    So, what is the check and balance for a president that is doing these things? Impeachment? Censure? Whining about it to the public?
    I am just a political peon, with just a little bit of a public voice, and in no way in a position to do anything about it.
    But it is wrong, and something needs to done about it.

  16. I expected more understanding from Turley here about the Constitution and how federal law works.

    As mentioned above, we all know that the Legislative Branch (Congress) creates the laws. So what does the Executive Branch do? It carries out the laws that are created by Congress. But how does it do that? By law, the Executive Branch (which is the President and all of his/her agencies) has to follow the U.S.C. written by Congress. But often times Congress is too busy to spell out in great detail how exactly the rubber should meet the road with respect to how each agency is affected by a particular law. And even in the case where it isn’t too busy, Congress has learned over the years that the Executive Branch agencies are usually more experienced and better equipped to deal with the miniscule details that come along with the burden of the day to day execution of the laws created by Congress. Congress has solved this problem by affording a reasonable amount of discretion to the Executive Branch agencies which, in turn, allows the agencies to come up with their own detailed rules on carrying out the U.S.C. These detailed rules are known as the Code of Federal Regulations (“C.F.R.”).

    A self-proclaimed constitutional scholar like Turley should know about the CFR.

    Long story short, when Congress writes a law like the Affordable Care Act, it will state in broad terms in the U.S.C. (and sometimes in minute details) what the law is supposed to do (ie. no person can be turned down for preexisting conditions). It will purposely leave areas of discretion for the Executive Branch to draft its own C.F.R.’s for the the day to day small stuff (ie. how are penalties enforced by the Executive Branch against companies that violate the preexisting condition law, how long does the Executive Branch need to wait before acting against such a company, etc.). (For more on how this works, see Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984)).

    So when the President says that he’s going to take action without waiting for Congress, what he’s talking about is using the C.F.R. discretion afforded to the Executive branch by Congress. He is not, as Turley’s article suggests, directly going against the provisions of the U.S.C. The Executive is not allowed to do that. But where Congress has purposely stated in the U.S.C. that the Executive Branch has discretion to do XYZ under the C.F.R.’s, then the President and his Executive Branch Agencies have discretion to do XYZ.

    C’mon, Turley. I expect better from you.

  17. If The Janitor is correct, one must ask themselves what is going on here? The citizens of the US deserve to know the truth. Is Turley wrong, or misguided, or worse, being used? How can the Professor not know this? It would forward or at least clarify the Professor’s argument if he would address The Janitor’s comment. I would like as an average citizen to know who to believe about what could be a constitutional tipping point.

  18. A response from an intelligent commenter or Professor Turley himself would be helpful instead of fanboys, thanks. I’m seriously confused about what is occurring and I suspect others are also.

  19. Our system is changing in a fundamental way without even a whimper of regret. No one branch in the Madisonian system can go it alone — not Congress, not the courts, and not the president. The branches are stuck with each other in a system of shared powers, for better or worse. They may deadlock or even despise one another. The founders clearly foresaw such periods. They lived in such a period.” – JT

    Well said.

    The dangers to society were real then too, but probably not near as utterly deadly as a malfunctioning ship of state is now.

    Very timely.

  20. JackSprat, It’s all there. Basic 8th grade civics. I know it’s tough for some to think their president is Nixon like, but he is. After he leaves office we are going to learn a lot. Hopefully the damage will be limited but he seems to be doubling down on The Chicago Way. The truth can be a mofo, but it will make you free.

  21. “The way out, if it is not too late, is to be for the rights of all, no exception.” -Jill

    “Snowden Warns Us of the Dark Path Ahead”

    March 10, 2014

    “The final words are Snowden’s:

    If you want to help me, help me by helping everyone: declare that the indiscriminate, bulk collection of private data by governments is a violation of our rights and must end. What happens to me as a person is less important than what happens to our common rights.”

    (Snowden’s recent EU testimony: )

    Always good to see you here, Jill.

  22. Congress could act to correct any errors done by Executive action. Congress is capable of doing several things a year: go home for Easter, July 4th, Labor Day, Memorial Day, Christmas. Not one day mind you. They are not capable of voting up or down on judicial nominees or high and low executive nominees. Uh, do we have a budget? For all you critics, I say, tell that lazy Congressman of yours to get to work. And stay off C Street and K Street. I forget which street is for lobbyists and which street is for hookers, but its the same thing. Sorry Professor, I don’t buy the argument.

  23. Right on !! We the taxpayer should go on strike! They can not jail all of us , where would they get the money to keep us in a manner we are accustomed to.the Chinese would not want to lend them anymore money because the collateral ( we the people) would not be available .

  24. Respectfully, the real problem is not an over reach by the Executive branch, while I agree that there has been some over reach. The real problem, in my opinion, is the money in politics. With Citizens United and its predecessors and possible successor, our government can be and is bought and sold by the corporate sponsors and the wealthy. Without removing money from politics, no branch of the government will be brought into control.

  25. I learned today from Mediaite that Michael Moore is part of the 1% thanks to his reward for a single project. Citizen United is regarding corporations composed of people not a single individual with few employees & more money than god muckraking like anyone who does not think analogously is inexpedient.

  26. I am 70+, and I’ve seen it change. Congress created agencies with rule-making power. Today we find the Executive giving orders to those agencies.

    In the 40s and 50s, oh my but did they grow. Not being a legal scholar, has there been a case involving the rule-making power (which belongs to congress) delegated?

  27. “So when the President says that he’s going to take action without waiting for Congress, what he’s talking about is using the C.F.R. discretion afforded to the Executive branch by Congress.”

    If the Executive branch agencies already have this discretion, then the president has no need to state that he is going to take action without waiting for Congress.

    The phrase “waiting for Congress” sounds like the president expects Congress to act on some aspect of legislation. Taking action without waiting for Congress sounds like he’s acting outside the CFR discretion already afforded him.

  28. It sounds as if he is merely reminding them that he has this C.F.R discretion and will be using it. That doesn’t sound as if it is outside of his allowable Constitutional rights as Executive. Perhaps he thinks it helps highlight the intransigence of the Congress by saying he won’t for wait for them. I’m beginning to think this brouhaha is nothing more than smoke and mirrors.

  29. Under other circumstances Obama’s actions might bother me but not now. The Republicans are refusing to do their constitutional duty and the Supreme Court has become an un-elected legislative branch mostly adhering to Republican wishes.

    We have a non-functioning government and I’m pleased that Obama is stepping up and assuming powers that may not be authorized in our constitution. This legislature refuses to do their duties, not because policy differences, but because of pure unadulterated racial hatred. Their attitude is that out first black President must fail regardless of the cost to our citizens or country.

    I look at President Obama’s actions the same way do about civil disobedience—there are times when that is the only way right a wrong.

  30. “It sounds as if he is merely reminding them that he has this C.F.R discretion and will be using it.”

    If he already has CFR discretion then it is already out of Congress’ hands and therefore a non-issue. However, the manner in which he addressed Congress was a threat to circumvent them. It was not a friendly heads-up, hey, I have a CFR on this and my agencies will just take care of the fact that none of us bothered to read the ACA and notice that there were problems. There is no reason to threaten ‘to use a pen and a phone if you don’t do what I want’ if President Obama already has authority.

    As I think I understand it, President Obama has no need to issue executive orders if a CFR is in place in the legislation because it is the agencies that come up “with their own detailed rules on carrying out the U.S.C.” I’m not entirely convinced that CFR has anything to do with the examples Mr. Turley cited.

    Further, I don’t think a CFR applies to this scenario:
    “The Obama administration took $454 million from a fund established to help prevent illness and put the money instead toward paying for the federal health insurance exchange. Even leading Democratic members denounced this as “a violation of both the letter and spirit of this landmark law.””

  31. @Prairie Rose & JackSprat:

    “If the Executive branch agencies already have this discretion, then the president has no need to state that he is going to take action without waiting for Congress.”

    It’s pure political posturing, to be sure.

    To make a rough analogy (again, this is a ROUGH analogy, not an exact analogy), it would be like your boss at your job making an announcement during a team meeting that if you don’t complete your project by March 15 then he’s going to give your project to Bob. Your boss has no need to state that he is going to give your project to Bob — indeed, he could do this at any time with or without your approval. He’s your boss, afterall. But he wants to make a big deal out of it so that you’ll take action.

    Same principle here.

    The Pres can already operate within the limits of the CFR’s, but he’d rather have Congress pass laws (USC’s) that give him what he wants.

    Beyond the showmanship, however, there is a practical incentive for the President to get Congress to pass a law to further his agenda rather than using his discretion within the CFR, and that incentive is this: A CFR is a weaker measure than USC, just as a law (USC) is a weaker measure than a Constitutional Amendment. A CFR’s scope can be eliminated by Congress much easier than if Congress were to repeal its own USC. In order of permanency, its goes: (1) Constitutional Amendment, then (2) USC, and lastly (3) CFR. In other words, if you can get an Amendment you go for it, but Constitutional amendments are very difficult (throughout our Nation’s history there have only been 27) so a President will not likely get one to pass. If you can’t get an amendment, then you get Congress to pass a law (USC). If you can’t get a USC, then you fall back on the CFR.

  32. Obama is not, as some suggest, merely filling in statutory gaps left by Congress. Rather, he is flouting black letter law as enacted by Congress (or interpreted by the courts). Examples per Prof. Turley’s piece…

    Congress: set health care law compliance deadline
    Obama: “add[ed] two years to the compliance deadline set by law”

    Congress: “ended a subsidy for members of Congress and their staffs”
    Obama: “ordered that the same subsidies would continue, in defiance of the law”

    Congress: “refused to pass the so-called Dream Act”
    Obama: “order[ed] agencies to effectively guarantee the very same [Dream Act] changes.”

    Congress: enacted “mandatory minimum sentences” in drug cases
    Obama: “ordered all U.S. attorneys to stop prosecuting nonviolent drug crime defendants,” which “effectively negates sentencing provisions set by Congress.”

    (Courts: “interpreted [Wire Act] to mean that Internet gambling was prohibited”
    Obama: “declared the act would now be treated as having the inverse meaning.”)

    Professor Turley gets at the core problem here: “Obama is not simply posing a danger to the constitutional system; he has become the very danger that separation of powers was designed to avoid.”

    Stated somewhat differently, Obama is going well beyond Bush, a mere constitution shredder, by essentially repealing the entire basis for U.S. sovereign authority on which the constitution rests, i.e., the Declaration of Independence, which–until now–abolished rule by monarchs.

  33. You missed one: Terror Tuesdays vs 4th Amendment.
    [No Person shall be deprived of life without due process of law.]

  34. “Congress is refusing to act….”

    What are they refusing to act on? Is it additional changes that are unconstitutional or things that they disagree with?

    I believe that gridlock is part of the plan to keep the powers in check.

    Congress isn’t a “do nothing” group. Indeed the executive branch does nothing at all to act on congresses endeavors. In fact the I’ll take it one step further. The executive branch does everything it can to create road blocks, stall and prevent Congress’s work. The president won’t even acknowledge Congress or even have a dialogue. Where’s the obstruction here?

    Grade school philosophy would rule here. “You work with me, I’ll work with you.” Or “You’ve got to give a little to get a little.”

    I’m working under a different assumption about the Do Nothing Congress. They aren’t doing anything to protect their powers. That’s do nothing here.

    Jonathan Turley is not the only scholar that testified at Congressional hearings about this. Congress has asked over and over again what can be done with a president over stepping his constitutional duties. There are only two options; using the power of the purse and impeachment.

    The President will create a royal media hissy fit over the funding and who wants to start impeachment processes against our first American American president? Let’s add, who wants to do anything of this prior to midterm election? I think congress would be surprised. If they did act, they might have a better chance of winning more midterm seats, not less.

    I would imagine that the executive branch is going to go more rogue over the next 9 months. They know Congress won’t do anything given the implications and the timing.

    There’s quite a bit that I agree with in Obamacare. I have a very difficult time understanding why it was the citizens that had to take the fuzzy end of the lolly pop. If he’s so much for the little people, why not create regulations to impose on big business insurance companies instead? The agencies under the executive branch does this every day in my industry and every week there’s a new regulation. Surely there’s some agency that this could fall under without taxes the H.E. double hockey sticks out of the little guy.

  35. The ACA originated in the Senate, but the mandate was declared a tax by the Supreme Court.
    Tax bills, constitutionally, originate in the House.
    So, exactly how is it still law?

    The Constitution is being shreded according to plan.
    A tax bill can now originate in the Senate and be re-written by the Supreme Court and altered at will by the Executive in charge of enforcing it.

    and then there is silence…..because?
    anyone who speaks up is labeled racist
    or perhaps targeted by the IRS
    or blackmailed by the NSA


  36. “Progressives have had a lot of sport recently contrasting conservative attacks on Barack Obama as a vicious law-breaking tyrant in domestic affairs with their simultaneous attacks on him as a weak, trembling figure on the world scene. How could Vladimir Putin fail to notice that Obama has struck so much fear into the hearts of his enemies at home, who are cowering in their homes awaiting assaults from IRS agents and affianced gay people? Hard to say.

    But conservative self-contradiction about Obama’s spine reflects a much broader and deeper ambivalence about whether they are winning or losing the great battle for America’s culture and political system.” Ed Kilgore, TPM Cafe

  37. Propaganda pitting conservatives against Obama is a good technique to make certain people will not focus on what the president is actually doing. In order to keep people ill informed, confused and unable to take effective action, people must be pitted against each other.

    Powerful conservatives who serve the oligarchy, in league with powerful liberals who also serve the oligarchy whip up people against each other. This type of propaganda works because there is some truth in the claims of both minions of the oligarchy. It also works because it functions to make people feel superior and good about themselves because, they are not like those other bad people over there. And yet, as we are taught how essentially different Obama is from Bush, if we care to acutally look, we see they are not really different at all. That is one of the big lies.

    Another of those lies is that Congress is hopeless in gridlock. They are only in gridlock when it serves the purpose of the oligarchy. When it helps the oligarchy they will work together quite well and quite quickly. From that lie, Democrats say, well Obama must take over because how will we get things done if he doesn’t take it? He is a good guy, a great man, the best president ever! Of course he only wants what is best for our nation, so certainly, a good, decent, wonderful man like Obama should have the power to do anything he wants! Amen!!!

    Well, I really don’t know why people still believe these lies about a man who has drone killed large numbers of men, women, children and babies,– a man who tortures and who goes to war at the drop of a hat. But people want to believe and we have the propagandists to help them keep their belief. Still, we come back to JT’s essential argument: Whatever the great and powerful OZ is doing today will eventually pass to another great and powerful OZ whom you may not agree with. The way out is to stand for the rights of all, even your most hated enemy. You cannot be so easily manipulated if you will hold to the truth that everyone’s rights must be protected or everyone will lose those rights.

  38. “Recently, a bizarre scene unfolded on the floor of the House of Representatives that would have shocked the framers of the Constitution. In his State of the Union address, President Obama announced that he had decided to go it alone in areas where Congress refused to act to his satisfaction. In a system of shared powers, one would expect an outcry or at least stony silence when a president promised to circumvent the legislative branch.”

    Let’s be fair, though. The framers of the Constitution would be shocked by a lot of things, including the fact that he has to “go it alone” due to incessant gerrymandering by his opposition party.

    They would likely also be shocked by his race. :P

  39. “Today, America’s political system seems remarkably dysfunctional. Many people believe that our 225-year-old Constitution is the problem. But what looks like constitutional dysfunction is actually constitutional transition, a slow and often frustrating movement from an older constitutional regime to a new one.

    Americans last experienced this sense of dysfunction during the late 1970s and early 1980s – the “last days of disco.” The New Deal/Civil Rights regime had gradually fallen apart and was replaced by a new constitutional order – the conservative regime in which we have been living for the past three decades. By 1984, few people argued that the country was ungovernable, even if they didn’t like President Reagan’s policies.

    In the same way, our current dysfunction marks the end of the existing constitutional regime and the beginning of a new one. This new regime may be dominated by the ascendant Democratic coalition of young people, minorities, women, city dwellers and professionals that elected Barack Obama in 2008 and 2012. Or insurgent populists associated with the Tea Party may revive the decaying Republican coalition and give it a second wind. As of yet, neither side has been able to achieve a successful transition, leading to the current sense of frustration.

    Nevertheless, the transition to a new constitutional regime will be far more difficult than those effected in 1932 and 1980. First, the growth of the modern state and changes in the role of the presidency mean that even the most politically adept and fortunate presidents face greater obstacles to implementing transformative change than they once did; they are less able than past reconstructive leaders to disrupt existing institutions and clear the ground for a new politics. This, by itself, does not prevent the emergence of a new constitutional regime. But second, and perhaps more important, the current transition will be especially difficult because we are near the peak of a long cycle of increasing polarization between the nation’s two major political parties. That polarization greatly raises the stakes of a transition to a new constitutional regime. The defenders of the old order have every incentive to resist the emergence of a new regime until the bitter end.

    A long and frustrating transition will have important side effects. First, a dysfunctional Congress tempts the Executive to act unilaterally, by asserting inherent executive authority or by creatively interpreting previous Congressional authorizations. Future presidents may use these new sources of power even when the period of dysfunction has passed.

    Second, a period of sustained political dysfunction also tends to empower the judiciary vis-à-vis Congress. Courts will feel freer to assert themselves and will show Congress less deference. Moreover, judges appointed by the older dominant party, late in the regime, are less likely to engage in judicial restraint and more likely to push the jurisprudential envelope. This helps explain some of the Roberts Court’s recent work. Assisted by conservatives in the lower courts, and by energetic litigation campaigns by conservative civil society groups, the Roberts Court appears to be solidifying and extending the old regime’s ideological and constitutional commitments while it still can.

    Our current political dysfunction will end, and a new constitutional regime will emerge. Yet injuries to our politics caused by years of political difficulty will remain. The coming constitutional order will offer new possibilities for political reform, but it will also bear the scars of previous struggles.” Jack Balkan, Balkanization

  40. SWM, That’s a thought provoking piece by Balkan. Funny, how duopolists don’t even mention or want to think of an insurgent 3rd party, because that is what is going to change the dynamics. It’s coming, be afraid…be VERY afraid!

  41. The idea of a “dysfunctional” Congress is propaganda. If you look at Congress they will act when it benefits their benefactors. They will throw up roadblocks on cue when their benefactors tell them to do that.

    If Congress were truly “dysfunctional”, they would need to be dysfunctional at all times. They would not be highly effective at passing legislation when it helps those who pay for their services. They would never be effective. That is what real dysfunction would look like.

    This is like the federal govt. saying they don’t have money for food stamps but they somehow always have money for wars of empire. This is planned dysfuntionalism, not real inability to function. Choices are being made to benefit the people who have bought the services of Obama and most Congressional members.

    Now let’s suppose it is true that Congress just won’t do what Obama wants? So, the answer for many Obama royalists is to make Obama a king, the imperial president. Never a thought crosses the mind of royalists that a king may change and be from the “wrong” party and want to implement the “wrong” ideas. Well it’s time to stop wanting a king to solve the problems of the US.

    It is we the people who need to step up to the plate to solve the problems of the US. We should vote out the losers who are bought and paid for by the oligarchy. We should stand united in demanding a return to the rule of law. That is the only way out.

  42. niick, Maybe a 3rd and a 4th party. Don’t see progressives getting together with the anti- gay marriage, anti-govt healthcare, anti voting rights people.

  43. You made some excellent and valid points that were well stated. However, I do disagree with the following point:
    “They are only in gridlock when it serves the purpose of the oligarchy. When it helps the oligarchy they will work together quite well and quite quickly.”
    I seriously doubt the Republicans will ever work in conjunction with the Dems on any issue—-if Obama is in favor of something the GOP’s automatic gag reflex kicks in.

  44. Jill,
    I must admit that you are correct. I really feel for our country and I appreciate reading your well thought and articulate response. Thank you.

  45. @jill

    Bush had his royalists too:

    “By elevating popular fancy over truth, Democracy is clearly an enemy of not just truth, but duty and justice, which makes it the worst form of government. President Bush must overcome not just the situation in Iraq, but democratic government.

    However, President Bush has a valuable historical example that he could choose to follow.

    When the ancient Roman general Julius Caesar was struggling to conquer ancient Gaul, he not only had to defeat the Gauls, but he also had to defeat his political enemies in Rome who would destroy him the moment his tenure as consul (president) ended.

    Caesar pacified Gaul by mass slaughter; he then used his successful army to crush all political opposition at home and establish himself as permanent ruler of ancient Rome. This brilliant action not only ended the personal threat to Caesar, but ended the civil chaos that was threatening anarchy in ancient Rome – thus marking the start of the ancient Roman Empire that gave peace and prosperity to the known world.

    If President Bush copied Julius Caesar by ordering his army to empty Iraq of Arabs and repopulate the country with Americans, he would achieve immediate results: popularity with his military; enrichment of America by converting an Arabian Iraq into an American Iraq (therefore turning it from a liability to an asset); and boost American prestiege while terrifying American enemies. “

  46. Wayne, Check out just how bi-partisan Congress and the president can be when they want to. Banking regs, funding war contractors, to name two places it can be seen–they are all over it. It is as bi-partisan as it gets! That’s because they all work for the same people. They differentiate just enough so people are terrified of the “other” party. This keeps people under control.

    People focus constantly on elections and forget about what is happening right now. We need to pay attention to the actions of the powerful in the present. There will always be elections. What we need is people power which serves the cause of justice and the rule of law. We need it right now!

    Thanks for what you wrote. I feel for our nation as well.

  47. SWM, We’ve gone over your Paul family obsession. The third party will come from a coalition, not an ideologue. It will form swiftly and be a tsunami. My fear is the coalition is not led by a demagogue. We are ripe for a demagogue.

  48. Indigo Jones,

    I completely agree that Bush had royalists. That was also a disaster. I believe Bush invaded Iraq for wealthy corporations. For him and now for Obama, making the world safe for corporations has been a very successful foreign policy. Whole nations, including are own, are no longer even a semblance of democracy and the rule of law.

  49. nick, The people your refer to as PC probably won’t join you. I think the right wing already had its shot with the tea party so we will see. What are the demographics of the third party you envision? What would be the platform?

  50. It’s officially a party, Nicky is baiting the baiter. The anti incumbent movement is in full swing.

  51. @jill

    > “Whole nations, including are own, are no longer even a semblance of democracy and the rule of law”

    I agree, but I don’t know when our own country ever bore much semblance to democracy.

    Voting rights were limited to white, land-owning men until the 1850’s. The 14th Amendment was written to protect corporations (through the due process clause: see just as much as to enfranchise male adults.

    Women didn’t get the vote until 1920. The New Deal subsidized the poor without ever ending subsidies to corporations, and, after WWII, we chose militarism, which produced the military-industrial complex with manufacturing executives setting policy in non-elected positions, military generals acting as politicians and sitting on corporate boards of directors, and politicians in Congress receeding to the middle levels of power.

    After the civil rights legislation in 1964 & 1965, Louis Powell’s memo of 1971 laid out the program that Conservatives have been following since. Which is to say, as soon we achieve a genuine public sphere defined by universal suffrage fully protected by law, the new battle cry becomes “smaller government.”

    The tipping point was when we chose militarism in the 1950’s. And, specifically, when we chose a brand of militarism that relied on industrial production, creating the permanent war economy. That was the tipping point of a 100-year arc, beginning during the Civil War with Congress passing railroad legislation, giving railroad landgrants, and subsidizing the growth of monopoly.

  52. nick,
    I am a bit late to respond, but getting rid of the money in politics will stop this fire as you call it and prevent others. The only way any politicians can be held accountable is to take away their paymaster corporations and secret PAC money.

  53. A third party will be socially liberal but fiscally conservative. They will be pro-choice[no late term murders however]. They will be pro gay marriage but won’t allow gay divorce[stolen from Zach G]. The main focus will be economic. Government spending cuts made drastically, across the board. The bureaucracy can only be controlled via starvation. Entitlements will be made solvent through tough adjustments. The coalition will be comprised by people who don’t comment on blogs like this. It will be folks who work hard, play by the rules, want little form govt. and much less intrusion on their lives. That of course means the TOTAL end of corporate welfare, something that has become pernicious in the past few decades. For you the cuts are inhuman, I know. The coalition knows it’s inhuman to over tax and over regulate it’s citizens. So did the framers of our Constitution.

  54. nick,
    you just described most of the tea party’s platform. We don’t need massive cuts unless those cuts are to defense and corporate and wealthy welfare. Good luck on getting that passed when many in that camp that you are describing are benefitting from the tax benefits and corporate welfare. Starvation would only come to the poor and the middle class. Austerity has never worked and it won’t work now.

  55. Starvation would come to the bureaucracy. Those fat, lazy bureaucrats who get paid for doing nothing. They’ll have to go out and produce like most hard working people. I’m for giving money DIRECTLY to the needy. Cut out the layers of bureaucracy and give the money to those who truly need it. They can spend it all on candy, gambling, booze..whatever. If they starve, it’s on them. But, you know what, once they realize it’s on them, they won’t. Self preservation is primal. And, if anyone thinks cutting the government and lowering taxes is only Tea Party then they’re WAY OUT OF TOUCH.

  56. First of all nick,
    I did not suggest that cutting the government and lowering taxes is only the tea party. Secondly, as I suggested, the taxes that need to be cut are for the poor and middle class, not the wealthy and corporations who are bankrolling the tea party groups. Weren’t you one of the commenters suggesting that food stamps were being abused, even though the facts suggested the opposite? The food stamps were cut, but corporate welfare was increased or maintained current high levels at the same time. Food stamps are just one example of the poor getting direct access to assistance with very limited government involvement. Unemployment compensation was cut and corporate welfare was continued. The wealthy can pay much of their taxes at reduced tax rates because they receive much larger percentages of their income from dividends. Will your coalition take away the wealthy tax breaks that most of us can’t take advantage of?

  57. raff, If you only knew how much you just speak the party line I wonder how you would view yourself? Flat tax. You could cut the IRS by 80%. And, I don’t want to re-debate Food Stamps. Under the coalition there would be none. You get cash money to spend as you see fit.

  58. Here is how controlled the media is. Let’s see, a “progressive” site takes their marching orders from the Obama administration. Yes, that seems like a fabulous idea! Liberals don’t understand the level of propaganda aimed at getting them to do the bidding of the imperial president and his shock troops.

    Again, there is only one way out– care about the rights of all, including the right wing. (This is also true for Libertarians and the openly identified (as opposed to actual and hidden) right wing called the Democratic party. Stop focusing on elections and start paying attention to the current reality. Then, we need to clear our minds from all the lies. This will allow us to take action to address current reality.

    “After the White House called and told Think Progress writers to stop criticizing them a meeting was called at Think Progress and writers were given new orders by CAP executives…”

  59. Jill,
    I stopped reading ThinkProgress when Obama was elected.

    Their rhetoric about holding High Officials accountable for war crimes, illegal spying, war of aggression and other Administration/Cabinet scandals ceased when a Democrat perpetrated it and in many cases, elevated it to more not less.

    Their true colors, shining through… Partisan rose lenses.
    It’s never when their guy, John Podesta joins an Administration that facilitates the continued perpetration of crimes against the Constitution.

  60. Max-1, I agree. What is saddest to me is that around 2007, most people, including Republicans, had actively repudiated an imperial president. People were against the wars, they had even turned against torture and spying.

    It took the election of a Democrat, who ran against each of these atrocities, to legitimize every one of them. Obama was successful because he said he opposed all of these things. People were desperate so they did not really pay attention to his record, only his flowery speeches. Republicans voted for Obama because most people understood how wrong things were in our nation and believed Obama would do all the things he said.

    Once he got in, and really, even before with his telecom immunity vote and lobbying on behalf of the bankers in 2008, he did all the things Bush did and more. At which point, Democrats rallied to torture, wars of empire, financial inequality, anything. If Obama did it, it was good.

    The complete failure of Democrats to hold their president to account sealed the deal. Obama understood there was literally nothing he could not do. The only opposition he had were people Democrats and liberals would dismiss as right wingers. No amount of reason or evidence would convince people to oppose Obama’s injustices. This unreasoning, unwavering loyalty persists to this day. It is allowing the rule of law to be destroyed.

    I do not know why Bush supporters were able to finally come around and oppose him, while Obama supporters remain securely in the fold. All I do know is the necessity of more people coming together to confront present injustice.

  61. Jill, Simply reading some of the commenters here gives you a disturbing look into the mind of hardcore Dems. It is mind numbing!

  62. Face the facts, Democrats and the liberal media have practically hog tied and tar and feathered anyone who spoke up against this president. When the GOP spoke up: Cruz filibustered, Rand sued, they were low down, revengeful racist Republican’s. Those who have supported the president and stood up for everything he’s done over the last 5 years have brought Congress to their knees. The Democrats who speak up are ostracized, so, like it or not, everyone in that party goes along with the Democratic machine. Now the GOP, says, “Well, perhaps if we leave him alone, people will begin to see the truth.” I doubt it, we are too proud to face the factual truth of our party affiliation.

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