Political Hay

Should the President Be Impeached?

The Obama Precedent and defunding the IRS.

By 2.13.14

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Should the President be impeached?

For setting the Obama Precedent?

Also known as those multiple of multiples of arbitrary changes to Obamacare? And launching the IRS on employers who refuse to hire fifty employees so they can avoid paying for health care? Not to mention using the IRS and the full power of the federal government to harass and intimidate all those Tea Party groups?

The headline in the Los Angeles Times, reads this way:

U.S. to further delay Obamacare employer mandate

One of countless stories on the subject appearing all across the media landscape the Times version began this way:

WASHINGTON — The Obama administration again delayed a requirement that large employers provide their workers with health benefits, offering businesses more relief from the president's health law deadlines.

Stop.

Let’s move ahead three years. To 2017 and this news story:

Washington, January 21, 2017

President Ted Cruz, citing what he called “The Obama Precedent” today unilaterally repealed Roe v. Wade, once again making abortion illegal in the United States.

The White House briefing room erupted in a chorus of anger as the President’s new press secretary joked that “the President found former President Obama’s pen and telephone hidden in a safe underneath a floorboard in the Oval Office.” The White House spokesman cracked that the safe had a note addressed “Dear Hillary” and held the safe’s combination.

The comment, a reference to the defeated 2016 Democratic presidential nominee Hillary Clinton, drew a scathing rebuke from a number of reporters who asked if the former Secretary of State’s narrow, 44-state loss to Cruz was cause for humor.”

Democrats immediately assailed the move, with a furious Senate minority leader Harry Reid saying: “The president is rewriting law on a whim.” House Minority Leader Nancy Pelosi led a group of female legislators on a protest outside the White House.

Former President Obama, vacationing in Hawaii, had no comment.

If American history teaches anything, it is that the warning to be “careful what you wish for” is one of the nation’s hard truths.

Perhaps one of the more spectacular episodes of being careful what you wish for was the campaign by liberals to destroy the Supreme Court nomination of Clarence Thomas. Insisting that the vacancy caused by the resignation of then-Justice Thurgood Marshall — the first African American to serve on the Supreme Court — meant there had to be a black nominee to replace Marshall, liberals of the day were stunned to get their wish. President Bush 41 nominated Thomas, a Reagan conservative and a black man. Furious, the Left compounded their “be careful what you wish for” problem by wheeling out Anita Hill to accuse Thomas of sexual harassment. “Women tell the truth” went the angry liberal mantra as feminists rallied to Hill.

Thomas was confirmed over these vitriolic objections. Years passed. The calendar turned to 1998. And lo and behold, the Clinton-Lewinsky scandal blossomed. Under laws written by liberals, the special prosecutor had the authority to investigate President Clinton’s past relationships with women. One woman after another emerged to accuse Clinton of everything from rape (Juanita Broaddrick), groping in the Oval Office (Kathleen Willey), and dropping his pants to demand an employee “kiss it” (Paula Jones).

The President lied to a federal judge, and the move to impeach Clinton was on. Astonished liberals began to hear their own views on sexual harassment quoted back to them, “women tell the truth” not the least of them. The Clinton second term was essentially destroyed.

Now?

Now President Obama is busy unilaterally repealing the Affordable Care Act. Noted Charles Krauthammer the other night on Fox:

But generally speaking you get past the next election by changing your policies, by announcing new initiatives, but not by wantonly changing the law lawlessly. This is stuff you do in a banana republic. It’s as if the law is simply a blackboard on which Obama writes any number he wants, any delay he wants, and any provision.

It’s now reached a point where it is so endemic that nobody even notices or complains. I think if the complaints had started with the first arbitrary changes — and these are not adjustments or transitions. These are political decisions to minimize the impact leading up to an election. And it’s changing the law in a way that you are not allowed to do.

And over at the Volokh Conspiracy, Jonathan Adler, who teaches constitutional law at Case Western University School of Law, writes (bold print supplied): 

Whatever the stated reason for the new delay, it is illegal. The text of the PPACA is quite clear. The text of the Patient Protection and Affordable Care Act provides that the employer mandate provisions “shall apply” after December 31, 2013. The Treasury Department claims that it has broad authority to offer “transition relief” in implementing the law. That may often be true, but not here. The language of the statute is clear, and it is well established that when Congress enacts explicit deadlines into federal statutes, without also providing authority to waive or delay such deadlines, federal agencies are obligated to stay on schedule. So, for instance, federal courts routinely force the Environmental Protection Agency to act when it misses deadlines and environmentalist groups file suit.

So.

This is the future of America? A President of the United States changing the law by fiat?

One can only imagine the foaming outrage that would swamp the airwaves and liberal precincts if a President Cruz applied what can now be called “The Obama Precedent” to Roe v. Wade or any other issue that is at the center of the liberal/conservative split.

Gay marriage? Gone by fiat.

Go back to war in Iraq? Done by fiat.

Obamacare? Abolished by fiat.

Criminalize the Center for American Progress or Media Matters? Done by fiat through the IRS.

Make no mistake. What is happening with the repeated changes in Obamacare and the use of the IRS is setting precedent. And it is precedent that liberals will come to regret.

Let’s recall that last May, as the GOP House sought to pass a repeal of Obamacare, the White House tweeted the following:

It's. The. Law. #ObamaCareInThreeWords, twitter.com/whitehouse/sta

Now? “It’s. The. Law.” has become “It’s. The. Law. Unless we change our minds and refuse to enforce the law or want to change the law or ignore the law.”

Make no mistake. What’s really going on here is a total disregard for the Constitution of the United States. For the law. And once started down that path, as was demonstrated vividly in the presidencies of Bill Clinton and Richard Nixon, nothing good can come of it. To let the president get away with such vivid law-breaking is the summons to precedent, sending the signal to future presidents that they can disobey the law with impunity simply because they are president. Indeed, in his famous interview with David Frost after leaving the White House, Nixon crisply put it this way (as seen here): “When the President does it, that means it is not illegal.”

Indeed, there is considerable irony in the fact that liberals so loathed Nixon but today are ardently defending Obama for doing exactly what cost Nixon the presidency.

Imagine, to use the actual statement from the Obama Treasury Department that announced the latest changes-by-fiat to Obamacare, that it were rewritten as follows and issued that January 21, 2017 by the Cruz Justice Department. It could read this way (the original Treasury Department statement found here): 

JUSTICE AND IRS ISSUE FINAL REGULATIONS IMPLEMENTING DOCTOR/PATIENT SHARED RESPONSIBILITY UNDER ROE V. WADE ACT

Doctor responsibility provisions begin in 2017; future rules will simplify reporting for abortions

WASHINGTON — Today, the U.S. Department of Justice and the Internal Revenue Service (IRS) issued final regulations implementing new doctor/patient responsibility provisions under the 1973 Roe v. Wade decision. In addition, final regulations will be issued shortly that aim to substantially streamline doctor reporting requirements for women seeking abortions that offer relief to all or virtually all unborn children. The doctor responsibility rules assist doctors affected by these policies in providing quality, affordable care to the unborn. If doctors decide to offer abortions to women, they will make a patient-shared responsibility payment beginning in 2017 to help offset the costs to taxpayers of law enforcement resulting from changes to Roe v. Wade.

What, exactly, do you think the reaction would be to this? A President — by fiat — unilaterally repealing a Supreme Court decision that in fact, however controversial and unpopular it may be with millions, is nonetheless the law of the land.

Are you kidding? Are you kidding?

This country would be turned upside down by liberals determined to impeach Ted Cruz before he had even served a week as President of the United States.

Yet this behavior of a hypothetical-President Cruz, when done by President Obama, goes on — and on — with no challenge. None.

Recall the Obama unilateral refusal to enforce the Defense of Marriage Act (DOMA).

That episode was headlined this way over at the HuffPo, with bold print for emphasis in this story supplied here:

Obama: DOMA Unconstitutional, DOJ Should Stop Defending In Court

WASHINGTON -- In a major policy reversal, the Obama administration said Wednesday it will no longer defend the constitutionality of a federal law banning recognition of same-sex marriage.

Attorney General Eric Holder said President Barack Obama has concluded that the administration cannot defend the federal law that defines marriage as only between a man and a woman. He noted that the congressional debate during passage of the Defense of Marriage Act “contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships — precisely the kind of stereotype-based thinking and animus the (Constitution's) Equal Protection Clause is designed to guard against.”

Got that?

A duly passed “It’s. The. Law.” — passed by the House and Senate of the day and signed into law by the President — Bill Clinton — was overturned simply because Mr. Obama didn’t like it. So — in a blink — the Justice Department simply would no longer enforce it.

And don’t forget the announcement the President made back in June of 2012 in which, by fiat, he implemented an amnesty program for the children of illegal immigrants. Legislation on this subject — the so-called DREAM Act — had failed some 30 times to be passed by Congress. So, Obama simply did it by fiat. Done.

Once again, the idea that the White House trumpeted about Obamacare — “It’s. The. Law.” — was simply overturned. By fiat.

Or, as Richard Nixon put it: "When the President does it, that means it is not illegal."

Now what?

The President of the United States is systematically, repeatedly, breaking the law. He took the presidential oath of office — twice — that reads as follows by instruction of the Constitution:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

Say again, the words are “faithfully execute” and “preserve, protect and defend the Constitution of the United States.

And if the President doesn’t do this? The Constitution says he can be “removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

The other night, the always astute Andrew C. McCarthy, who has written about the idea of impeaching Mr. Obama, noted that the lesson of the Clinton impeachment episode was that the key is the political will of the people, not simply whether the President has in fact violated his oath of office.

Andy McCarthy is right.

But as McCarthy observes, this doesn’t mean the subject should not be discussed seriously.

Among other things, if, as Senator Cruz once said, “the votes are not there” to impeach Obama, it is incumbent on the GOP House to find other ways — ways that are in fact consistent with the political will of the American people — to bring a halt to the Obama Precedent.

That would include using the defunding mechanism. The attempt to defund Obamacare has catapulted Senator Cruz into the front ranks of GOP presidential contenders if thinning his invites to Georgetown dinner parties and dimming his popularity with some GOP Senators and Speaker Boehner. All the more reason to consider defunding various aspects of the Justice Department or the IRS or the Treasury Department, the agencies that have become the instrument of the President's flagrant law-breaking. Defunding the IRS alone or various internal organs of the agency would be exactly politically popular with millions of Americans Outside the Beltway.

To close?

Let’s recall the liberal outrage that was expressed when Richard Nixon unilaterally fired the Special Prosecutor that was investigating Watergate. In the day it was called “The Saturday Night Massacre,” and the response from liberals and the media to what was seen as an illegality — a direct defying of the law — was called a “firestorm.”

As recorded in the late Theodore H. White’s Breach of Faith: The Fall of Richard Nixon:

Deans of seventeen law schools (including Harvard, Columbia, Yale, Stanford) joined in a petition that Congress “consider the necessity” of impeachment now. Churchmen inveighed. Students rallied — at Columbia, they heard one of their deans call the President “a paranoid egomaniac, a quintessentially hollow man.” At Duke Law School, Nixon’s alma mater, 350 students petitioned for the removal of Nixon’s portrait from Duke’s student courtroom….

The White House had defied the courts. If the law did not bind the President to obedience in this instance, what laws could prevent him from other abuses of power, public or secret?…

Time magazine wrote of “The whole White House pervaded by an atmosphere of aggressive amorality — amorality almost raised to a creed… His (the President’s) integrity and trustworthiness are perhaps the most important facts about him to his country and to the world. And these Nixon has destroyed.

White noted the statement of Nixon’s lawyer, Charles Alan Wright, that:

“This President does not defy the law” although his client…had done exactly that. That was the heart of the matter. The President was part of the law…but how far did that law control him?

Make no mistake.

Like President Richard Nixon, like President Bill Clinton, President Barack Obama is defying the law. There may well be no will political or otherwise to impeach this president. But however it is done, Congress — that specifically means the purse-controlling House — cannot just sit there and do nothing.

The sauce for Nixon and Clinton’s law-defying geese must in some fashion be sauce for Obama’s law-defying gander.

Impeach the President?

The votes aren’t there.

But let the President get away with The Obama Precedent? Systematically violating the Constitution?

If the votes in the purse-controlling Boehner House aren’t there to do something about that — then why are they there?

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About the Author
Jeffrey Lord is a former Reagan White House political director and author. He writes from Pennsylvania at jlpa1@aol.com.