Our Constitutional Crisis

Patrick Borchers is a contributing writer on Leavenworth St.

PatBorchers01It hadn’t occurred to me to attach the word “crisis” to the Constitution until Ben Sasse did so in one of his Youtube videos during the Republican Senate primary in 2014. The video went sort of viral after it was linked on the Drudge Report.

Sasse was referring then to one of Obama’s executive pronouncements delaying a date in the Affordable Care Act. (Obama did so 28 times, so it’s hard to keep them straight.)

At first I thought Sasse’s characterization was overblown, but the more I have thought about it the more I think he’s right. The odd thing about crises is that sometimes it’s harder to see them from the inside than it is looking at the long arc of history.

The United States, by my reckoning, goes through one about every 75 years and this one has arrived right on schedule. In each case the response has been the further consolidation of power in the federal government, and lately pulling it in even further into the White House.

Sometimes the strengthening of federal power has been for the better, but lately I think for the worse.

The first crisis brought us the original Constitution, which was drafted in 1787. It replaced the weak Articles of Confederation with a much more robust federal government.

Rolling forward roughly 75 years brings us to the Civil War. The southern states believed that they had a sovereign right to secede and imagined themselves to be fighting the second American Revolution, but with the North as the enemy rather than Britain.

Of course, the social issue of the time was slavery, though several border slave states did not secede. With the Union’s military victory secured in 1865, the Civil War Amendments (the 13th, 14th and 15th) were ratified. Most obviously they abolished slavery, but they gave Congress considerable new legislative authority.

Rolling forward another 75 years brings us to the Great Depression. FDR’s New Deal depended on a massive expansion in the interpretation of the Commerce Clause to provide federal power for national welfare and regulatory structures. When the Supreme Court proved recalcitrant, FDR proposed packing the Court by adding up to six new Justices (taking the Court to 15 Justices). Although the Court packing plan wasn’t adopted, the Court got the message and started voting to uphold most of the New Deal legislation.

If we roll forward roughly another 75 years, we come to the Great Recession and Obama’s election. Again the response has been a dramatic increase in the power of the federal government, and lately in the White House.

In the two-year window from 2009 to 2011 when the Democrats controlled both houses of Congress and the White House, two enormous pieces of legislation passed – Dodd-Frank and the ACA. Although the scope of the legislation in each case is breathtaking, what’s even more remarkable is the power delegated to regulatory agencies.

What’s equally stunning, however, is that President Obama has claimed both that Congressional action and inaction give him the authority to essentially legislate by Executive Decree. In the case of the ACA – as mentioned above – he 28 times unilaterally delayed implementation of various facets of the act.

In Representative Trey Gowdy’s epic speech on the House floor, he reminded the President that Congress doesn’t pass suggestions; it passes laws.

But even when Congress doesn’t pass anything, President Obama claims the right to act unilaterally. In announcing his Executive action on immigration, Obama said defiantly: “To those in Congress who question my authority to act . . . I have one response. Pass a bill.”

A moment’s consideration is all that is needed to see the patent danger in this line of reasoning. Congress has passed a lot of laws on immigration and there has thus far been no political consensus to pass any more. In the scheme of separated government that we have, the President is to “Take Care” to see that the laws that are on the books are faithfully executed.

But President Obama’s position is that he and the rest of the Executive Branch can decide to enforce the immigration laws it likes and ignore the others, at least until Congress passes an immigration bill that he’s willing to sign. This is, quite literally, Hobson’s choice.

Looking back, I think few now would quarrel with the decision to adopt the Constitution or Lincoln’s resolve in preserving the Union and the Civil War Amendments.

As to the New Deal, in hindsight it provoked only tepid progress against rampant unemployment. In 1938, six years into FDR’s presidency, unemployment spiked at 19%, almost as high as it was when FDR took office. The event that really pulled the United States out of the Depression was entry into World War II. Of course some features of the New Deal, notably Social Security, are stitched into the fabric of most Americans’ expectations of the federal government. But Social Security is actuarially doomed absent significant changes in eligibility and benefits.

In my view, Obama’s expansion and consolidation of power is a bridge much, much too far. He has run roughshod over the Constitution, but perversely the magnitude of his actions has made it difficult to challenge them in court because of the standing doctrine, which requires an individualized injury to sue.

Of course this poses the question of what to do about it. There are more vocal calls for a Constitutional Convention and detailed proposals have been made for amendments that would mandate shrinking of the government, the most prominent of which is Mark Levin’s proposal for the “Liberty Amendments.” While many of these are worth pursuing – I particularly like his redefined Commerce Clause – these are a long-run project.

The more immediate project is to win more elections with candidates who truly believe in a limited government. Unfortunately, the proponents of expanded government have succeeded in capturing the flag of “action” and labeling others as “obstructionist.”

But restoring the size of government to that envisioned by the Constitution is hardly obstructionist; it is greatest imperative of our time.


  1. KHDS says:

    Play Sheryl Atkisson’s Substiution Game with Obama’s unconstitutional actions. If GWB did the same thing NYT would print two front page stories every day on this issue.

    Compare this to stories on Valerie Plame and Christie and the Bridge. Never heard so much about so little.

  2. I agree but says:

    I agree with your conclusion, but our timid and ineffective Congress refuses to do anything about him. This President should have been impeached. He has done so much worse than lie about a stain on a dress. While every President attempts to consolidate his power, his actions and inactions have gone too far.

  3. Uni dweller says:

    I would not gloat too much about the cigar bars. Image of the Republican male-dominated Legislature is created by what you decide to act on. The picture is a bunch of white men deciding to allow other mostly white men to expose mostly female wait qstaff to cancer causing secondhand smoke. Add to the image that they killed a bill for funding for mammograms yesterday. The tent just keeps getting smaller and now it is filled with smoke.

  4. Anonymous says:

    But why not take the President at his word and “Pass a bill?” If the President has committed impeachable offenses, again, why does the House not “Pass a bill” of impeachment? The Republicans have a majority in both Houses of Congress. What’s the hold up? Lack of gonadal fortitude?

  5. NE Voter says:

    Mostly rubbish and completely ignores the Perpetual War Regime and Surveillance State created by Obama’s predecessor.

    The only Amendment to the Constitution that should be seriously considered at present is a measure requiring all federal elected officials to wear NASCAR-style uniforms displaying the logos of their corporate donors. Each logo would be sized in proportion to the donor’s proportion of total campaign contributions received by the elected official/campaign/PAC. An alternate style uniform would simply display what sectors (energy/telecom/pharma/etc.) fund the elected official.

    Once the American people have gone through a few election cycles seeing who truly owns their federal officials, then we can get around to discussing other potential amendments to the Constitution.

  6. Danielle J. says:

    I wanted to thank you for presenting this to the DCRP Central Committee last Tuesday. I found it very informative and felt it provided exactly the right amount of information.

    Thanks again!

  7. E Hines says:

    why does the House not “Pass a bill” of impeachment? The Republicans have a majority in both Houses of Congress. What’s the hold up?

    Umm, maybe votes in the Senate? There are, after all, only 54 Republicans there.

    An attempt to impeach is a fool’s errand and an unnecessary distraction. What’s needed is better tactics. An illustration: the House should take up the just-passed Senate “clean” DHS bill forthwith, attach amendments to it that counter Obama’s immigration-related “executive actions,” and send it to a Conference Committee. What comes out of Conference then is easily passable through reconciliation.

    The present Constitutional crisis, rather than being a separate one, I think is a continuation of the crisis engendered by Roosevelt and his power grab–which he got not only through a compliant Congress, but also by successfully packing the Supreme Court. Obama is just doing the same thing in spades–recall his stacking of the NLRB and the DC Circuit. And the establishment Republicans have gotten so used to playing second fiddle, so used to losing, that they aren’t emotionally equipped for governing.

    Some details, too: …the Court got the message and started voting to uphold….

    Timid Justices got the message, but FDR was able promptly to begin packing the Court, too, through death and convenient retirements. By the time of Wickard in 1942, eight of the Justices were FDR appointees.

    As to the New Deal, in hindsight it provoked only tepid progress against rampant unemployment. In 1938, six years into FDR’s presidency, unemployment spiked at 19%….

    FDR’s policies actively prolonged the Depression; there was no “tepid progress,” just as Obama’s have depressed the recovery from the Panic of 2008. FDR’s minimum wage law–overtly racist in its Federal origin–was passed a year or so prior to that unemployment spike. Anyone with even a 1930s 3rd grade education could have foreseen that elevating the cost of labor would result in less of it being used. At roughly the same time as that price control on labor, FDR got though price controls–now minimum prices allowed–on farm products. This made food too expensive for the unemployed. And so FDR generated another government “solution:” Food Stamps. His Farm Relocation Act was overtly racist, too, and just as disruptive economically.

    It’s going to take a series of elections to weed out the timid establishment. Along those lines, I offer what I think is the most important Constitutional Amendment, and likely the only one needed. It follows an excellent constraint in the Articles of Confederation:

    No person shall be capable of being a member of either House of the Congress for more than two terms in any period of four terms. In the event a Congressman is elected or appointed to the other House of Congress than that in which he currently serves, his term in the other House shall be his second term in the period of four.

    Each of the intervening two terms, which must pass before capability to be a member of a House of Congress shall be restored, shall be as long as the term of the last House in which the Member shall have served.

    During each of the intervening two terms before a person shall again become capable of being a member of Congress, that person cannot work for, or in, the Federal government in any capacity, whether for compensation or pro bono, nor can that person work for any organization that does business with the government in any capacity, whether for compensation or pro bono. Any time spent doing such work shall not be counted a part of the intervening two terms.

    Eric Hines

  8. Anonymous says:

    Let me press the “impeachment” issue. What impeachable offenses did Obama allegedly commit?

    Did he, in fact, do those things?

    If he did those things, why are there no Articles of Impeachment from the House?

    Would Articles of Impeachment pass the House or not in a conscience vote?

    If none of these questions can be asked or answered why would anyone utter the word “Impeachment” with respect to Obama at all? What’s going on, rhetorical impeachment?

  9. mama says:

    The liberals who love Obama and don’t mind being called the ‘stupid American voter’….what will it take for you to see the president is doing a great job of destroying our Constitution? And will you still like these tactics when we have a conservative as president?

  10. Brian T. Osborn says:

    I recall a while back when newly minted Nebraska Senator, Deb Fischer, was here in Holdrege. She spoke in the basement of our library at a well attended meeting. I’m certain that as an unapologetic Liberal I was certainly outnumbered.
    One woman in particular, an obviously well trained Tea Party loon and Faux News fan. During the Q&A session this woman asked Sen. Fischer when they would be bringing up impeachment proceedings against the President. The Senator’s reply? A succinct, “On what grounds?” You can’t impeach the guy if he hasn’t broken any laws.

  11. Macdaddy says:

    Eric, you make some very good points. In reality, though, just taking our own unicam as an example, term limits hasn’t really improved the quality of the legislation coming from there. There are still smart representatives, dumb representatives, honest ones and crooked ones. The smart, crooked ones always seem to win. The real problem is the electorate. The real problem with the electorate is the culture. Right now, beginning with Sesame Street, on through high school, definitely in college, and every second of every waking moment, the electorate gets fed a steady diet of liberal fascism. Term limits does not address that. In a democracy, the people get the government they deserve. It’s pretty much over for us.

  12. Macdaddy says:

    Mama, I doubt we will ever again have a conservative president, but should we somehow get one who has no aversion to wielding power, the screeching from the Left will resume. Actually, the president only needs to be a Republican for the screeching to resume.

  13. Anonymous says:

    Liberal, facist indoctrination begins with Sesame Street? I always knew the Muppets were up to no darn good! It’s that Swedish Chef, isn’t it? All the Nordic countries are socialist, and look where that’s gotten them.

  14. Macdaddy says:

    Sesame Street and The Muppets are two different shows. You almost had a good comeback. Maybe the FCC will start helping you out.

  15. Chicken Little says:

    The sky is falling! The sky is falling!

    Calling the present situation a Constitutional crisis is a stretch.

    Exaggerating reality for purely political purposes is the problem, not the solution.

    Can we all agree that it’s time to hang Mitch McConnell for treason because his number one priority is to undermine the President of the United States?

  16. Brian T. Osborn says:

    Great fiction writing and an interesting alternate reality plot, Eric. Have you submitted your manuscript to the publishers yet? It’s a good thing we had FDR when we did or there would no longer be this “Constitutional Crisis” to be arguing about.

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