When I previously wrote about the Obama Administration’s announcement that the Department of Justice would be taking a pass on litigating on behalf of the Defense of Marriage Act (DOMA), I stated then I would not engage in analysis of the legislation itself as I recognized how easy of a divisive trap it was.
I stand by that observation still.
What has been slowly percolating in the back of my mind since then is a perspective on the implications President Barack Obama has created in terms of unintended consequences. This time, instead of pushing open the door to socialism wider he and his fellow party members – I believe – may have inadvertently bumped (or, perhaps, “nudged”) open another door that can lead America on a more libertarian path.
Making sense in this essay requires tying the new White House attitude on DOMA with its legal proceedings against the State of Arizona over SB1070.
With Arizona’s attempt to enact legislation authorizing state and local authorities to enforce immigration laws found in the U.S. Revised Code, the legislature and Gov. Jan Brewer were seeking to shoulder a burden that ought to have belonged to the federal government.
In response, the Obama Administration swiftly invoked the Supremacy Clause of Article VI of the United States Constitution and sued to block Arizona’s new law in federal court.
So, here, we have an instance where our federal executive branch openly flaunts its choice to not exercise authority granted to it by legislation. Not only that, it pursued litigation to block one of the states from doing so as well.
Since that whole brouhaha played-itself-out in front of the media, I took the opportunity to pick the brain of a gentleman named Kevin Hawley, who approached me last year and identified himself has having taught constitutional law, and then offered to answer my questions concerning such subject matter.
My inquiry following the SB1070 deliberation centered on the notion of, “What if the states counter-sued the federal government?”
The idea is rooted in the premise that the Constitution serves as a legally binding contract between the federal government in Washington, D.C., and the governments of the Several States. Therefore if the federal government jeopardizes the general welfare of any of the states and their citizens by deliberately failing to act on a federal statute, it stands to reason that would constitute a breach contract.
Demonstrating greater wisdom than I, Mr. Hawley swiftly shot the notion down. He explained that to maintain the balance created by the Separation of Powers the Judiciary retains the power to tell the Executive Branch it must cease and desist with an activity but it cannot compel (or dictate) it to engage in an activity.
Then, in February, the present administration became more brazen in its insistence that it enjoys the prerogative to pick-and-choose when it is going to enforce or uphold certain laws: the aforementioned DOMA.
Now enters the libertarian potential for (pro-)constitutional hijinx.
Since this administration has invoked the Constitution regarding federal supremacy to suppress a state law (SB1070) but then turned around and invoked it on a federal statute they claim falls outside its purview (DOMA), then what are the limits, really, to be found here?
Many libertarians have argued the pair of measures cited above are constitutionally questionable. However, a far greater percentage stands in agreement that there is much, much more emanating from D.C. that is unconstitutional as well.
Just ponder the possibilities if – by the Grace of God – we can elect a libertarian (preferably of the capital-L variety) to the White House next year.
After all, if the President of the United States is well within his or her authority to pick and choose when to enforce any given law, then wouldn’t the President also enjoy the same authority to arbitrarily shutter any Executive Branch office, agency, or even entire department?
If the current president may decide, “This law no longer suits my needs nor agrees with my sensibilities,” then what is there to stop a future president from padlocking the Department of Education, the Department of Health and Human Services, the Office of Regulatory Affairs and even the Internal Revenue Service and telling thousands of career bureaucrats, “Thank you for your time and dedication, here are some lovely parting gifts, and now beat it!”
Bear in mind that, based on the Separation of Powers, when Congress writes and passes legislation which establishes new laws, appropriations, and agencies it merely authorizes the President to engage in these activities and expenditures…
…It cannot compel the President to do so.
Thanks to the American Establishment Left, the precedent to play this game already has been set.