Читать книгу Faithless Execution - Andrew C McCarthy - Страница 8
Оглавление“It’s a good question.”
Ted Cruz was answering a query from a woman in the audience for a dinner speech. His topic was lawlessness in the Obama administration. This being Montgomery County, Texas, rather than the Beltway or the Upper West Side, the subject was deemed fit for respectable discussion. The woman’s question specifically concerned the president of the United States, and it was succinct:
“Why don’t we impeach him?”
Senator Cruz was right: It is a good question.
Impeachment, after all, is not a high mountain to climb. The Constitution vests in the House of Representatives “the sole power of impeachment.”1 Currently, the House is controlled by President Obama’s opposition: Republicans hold a comfortable 33-vote majority, with reasons for optimism that their ranks will swell after November’s midterm elections. Formal “articles of impeachment” require just a simple majority for approval. The historical rarity of impeachment owes to its gravity, not its difficulty.
Besides, despite the GOP’s seething intramural divisions, there is nigh unanimous revulsion when it comes to Obama’s agenda. In fact, even Democrats—especially those facing tough reelection races in the fall—have taken to avoiding joint appearances with the president. His poll numbers have tanked. Hope-and-Change delirium has given way to the hard reality that we really can’t keep our health insurance policies and our doctors if we like them. The public grows angrier with each insurance cancellation notice—or is it, each million cancellation notices?
Even Obama sympathizers at the Washington Post, putting their best spin on the matter, concede that 21 million people are out of work, not the 10 million grudgingly acknowledged by the administration.2 In fact, the real unemployment rate of about 13 percent is double the rate routinely reported by the media.3 By December 2013, the population of Americans over the age of sixteen without a full-time job had climbed to a staggering 92 million—far exceeding the total population of Germany, the world’s fourth largest economy.4 In a nation that has grown by nearly 10 million people since Obama took office, 11 million fewer people are working today than in 2009—marking a nadir in American workforce participation not seen since the Jimmy Carter malaise.5
Remarkably, prominent liberal law professors—a core Obama constituency—have even begun speaking up about the administration’s abuses of power. George Washington University’s Jonathan Turley describes Obama’s imperialism as the “uber-presidency,” conceding in congressional testimony that the president has enveloped the nation in “the most serious constitutional crisis . . . of my lifetime.” (Yes, Professor Turley did live through Nixon.) In more recent testimony he added, “The president has in fact exceeded his authority in a way that is creating a destabilizing influence in a three-branch system.”6 Harvard’s Alan Dershowitz has slammed the Justice Department for its “outrageous” and “selective prosecution” of a conservative Obama critic—a case that reportedly put Professor Dershowitz in mind of Lavrenti Beria, Stalin’s infamous secret police chief, who said, “Show me the man and I’ll find you the crime.”7
The alarm is way overdue, but it is not surprising. So rampant are President Obama’s violations of law and derelictions of duty that it has become a chore to summarize them. But let’s give it a shot.
The president has assiduously ignored the chief executive’s fundamental constitutional obligation to “take care that the Laws be faithfully executed.”8 He has repeatedly violated the oath that the Constitution requires only of presidents:
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.9
The president has serially usurped the power of Congress to write and amend the laws. When Congress has declined to enact his unpopular policy initiatives, such as the legalization of illegal immigrants and a cap-and-trade law that could fatally cripple the coal industry, he has presumed to legislate unilaterally and unconstitutionally, under the guise of executive orders and agency regulations.
The president has willfully defrauded the American people in the enactment and implementation of Obamacare. In addition, he has unilaterally and unlawfully amended and “waived” the statute’s terms—guided by his knowledge that timely, lawful application of the deeply unpopular law would be devastating to his party’s electoral prospects and would have made him a one-term president.
His administration has sicced the Internal Revenue Service and other government agencies on his political opponents—frustrating the capacity of conservative groups to have the powerful impact on the 2012 presidential election that they had on the 2010 midterms. Simultaneously, the administration has manipulated the law and the public fisc for the benefit of Obama’s political cronies. Contrary to the impression Obama conveys when his subordinates are caught using bureaucratic muscle to reward friends and harass foes—a frequent occurrence—the president is principally responsible for the misfeasance and malfeasance of his administration. He is not just an innocent bystander.
On Obama’s watch, the Justice Department has enforced the laws in a politicized and racially discriminatory manner. It has, furthermore, filed and threatened vexatious lawsuits against sovereign states to obstruct their lawful execution of public policy—particularly, the enforcement of laws against illegal immigration and election fraud. The president’s attorney general, Eric Holder, has exhorted state attorneys general to become more like him—to adopt the practice of ignoring the laws they are sworn to enforce when those laws depart from Obama’s progressive pieties.
Holder’s department orchestrated the astounding “Fast and Furious” operation, in which large quantities of firearms were knowingly sent to vicious drug gangs in Mexico. Top administration figures are, of course, rabidly anti-gun. Yet the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), in collusion with Justice Department lawyers, encouraged arms dealers to make illegal gun sales to “straw purchasers”—faux buyers whose true intention is to transfer the weapons in bulk to persons (usually illegal aliens and other criminals) who are not legally eligible to obtain them. At best, the ATF agents foolishly believed the straw purchasers would lead them to violent gangs against whom they could make a splashy case. More plausibly, the ideologues expected that the guns would end up tied to various atrocities, thus bolstering their political argument that America’s gun culture fuels international violence. Thousands of guns were allowed to walk, no meaningful prosecutions were developed, and, predictably, things went horribly wrong: some of the ATF guns have been tied to the murder of Brian Terry, a U.S. Border Patrol agent.
Congress has tried to investigate Fast and Furious, just as it tries to investigate a web of administration scandals that would make Richard Nixon and John Mitchell blush. The president frivolously invoked executive privilege to stall the probe, after Holder was held in contempt of Congress for his misleading testimony and refusal to turn over Justice Department memoranda.
That, by the way, was before Mr. Holder provided misleading testimony to Congress about his role in the investigation of a Fox News journalist—right around the time the Justice Department secretly issued sweeping subpoenas for the phone records of Associated Press reporters, flouting the department’s traditional deference to free-press rights explicitly protected by the First Amendment.
More recently, the department has embarked on an invidious felony prosecution against Dinesh D’Souza for allegedly illegal contributions to a Senate campaign. D’Souza, an influential conservative, is the author of The Roots of Obama’s Rage and co-producer of the related movie, 2016: Obama’s America, both of which were popular with the public and despised at the White House. The D’Souza case is the one panned by Alan Dershowitz as “selective” and “outrageous.” The piddling sum allegedly involved, $15,000, is well beneath the Justice Department’s norm for criminal enforcement; it falls into the category that is routinely settled with a fine paid to the Federal Election Commission. Certainly it is not in the same stratosphere as the Obama campaign’s own multimillion-dollar campaign finance violations, which are felonies that the same Justice Department opted not to prosecute.
The president instigated a war, unauthorized by Congress and in the absence of any threat to the United States, against the Libyan regime of Muammar Qaddafi. At the time, the Obama administration was supporting Qaddafi’s government with public funds and portraying it as a key American counterterrorism ally. As is the president’s wont, the war against Qaddafi was fraudulently conducted: the public was told that the military assault was an impartial humanitarian enterprise to halt fighting between the Libyan government and insurgent forces; in fact, the American-led coalition one-sidedly bludgeoned the Qaddafi regime, while the administration secretly green-lighted arms shipments and funding for the jihadist-ridden insurgents.
As was easily foreseeable, the unprovoked military adventure empowered anti-American terrorists. In addition to facilitating the arming of jihadists during the war, in violation of American criminal laws against material support to terrorism, the president’s policy enabled jihadists affiliated with al-Qaeda to seize parts of the regime’s arsenal in the chaotic aftermath of Qaddafi’s assassination. Thus fortified, terrorists conducted violent operations against American and other Western targets in the region.
Despite the threat to the United States exacerbated by his policy of empowering Islamists, Obama repeatedly claimed to the public, in the run-up to the 2012 election, that his leadership had “decimated” al-Qaeda and left the terror network “on the path to defeat.”10 His administration, meanwhile, facilitated the virulently anti-American Muslim Brotherhood’s rise to power in Egypt and, again in violation of American laws against supporting terrorists, issued a visa to a member of an Egyptian terrorist organization—formally designated as such under U.S. law—so he could consult with top administration officials at the White House.
At home, the administration consulted with “experts” it has refused to identify in purging information about Islamic supremacism—the ideology that drives our enemies—from materials used to train law enforcement, intelligence, and military personnel responsible for our security. The obsession with bleaching the Islam out of Islamic terrorism reached mind-boggling lengths with the administration’s refusal to brand the Fort Hood massacre—in which thirteen Americans, mostly military personnel, were killed and dozens more wounded—as an act of terrorism.
For a year leading up to the attack at Ford Hood in November 2009, the gunman, Nidal Hasan, a psychiatrist and commissioned officer in the U.S. Army, had been exchanging international emails with Anwar al-Awlaki, a top al-Qaeda terrorist who had ministered to the 9/11 suicide-hijackers. Breathtakingly, government investigators who knew about these emails, and were also aware of lectures in which the psychiatrist spewed anti-American jihadist rhetoric, dismissed all this as “academic research” that indicated no terrorist threat. After the massacre, the worst domestic terrorist attack since 9/11, General George Casey, army chief of staff, bleated that a “greater tragedy” than the mass murder and maiming would be “if our diversity becomes a casualty.” The administration fraudulently labeled the killings of U.S. troops who were about to deploy to a war zone as “workplace violence,” not international terrorism—a finding that denied Purple Hearts to the soldiers killed and wounded in the attack.
Meanwhile, Obama was imposing unconscionable rules of engagement on American combat forces in Afghanistan. Our troops are now expected to fight a war against terrorists who hide among (often sympathetic) civilians while not engaging the enemy if there is a possibility that civilians could be harmed. U.S. ground forces are also routinely denied air cover, again for fear of harming Afghan civilians. Since Obama took the helm and incoherently announced a troop escalation coupled with a troop withdrawal, American combat deaths have more than doubled, while the Taliban has surged and stands poised to retake Afghanistan after the imminent U.S. pullout.
President Obama turned a blind eye in 2009 when the Iranian people were brutally crushed in an uprising against their totalitarian regime—jihadist terror’s leading state sponsor, whose anthem for over thirty years has been “Death to America.” Then, in 2013, he reached out to President Hassan Rouhani, the mullahs’ new front man. After years of lip-service assurance that Iran would not be permitted to become a nuclear-weapons power, Obama has cut an “interim” deal with the regime that enables Iran to continue enriching uranium and eviscerates years of UN Security Council resolutions barring Iran’s uranium enrichment activities. Rouhani triumphantly boasted in a tweet that the United States had “surrendered to Iranian nation’s will,” while the regime’s chief negotiator bragged that Iran “did not agree to dismantle anything”: not its centrifuges, not its ballistics program, not its nuclear program.11
The interim agreement is to be implemented under the terms of a memorandum of understanding between the two sides. Tehran insists that if people want to know what this memorandum says, they should read it—but the Obama administration refuses to release the text to the American people. You’ll just have to trust them. We do know for certain that Obama demanded no concessions on Iran’s promotion of jihadist terror, the main reason why allowing it to become a nuclear-weapons power is unacceptable. At least, it used to be.
Back in Libya, Obama recklessly neglected the duty of a president and commander in chief to protect Americans serving overseas, a negligence that included the shocking failure to take responsive action while Americans were under a terrorist siege in Benghazi on September 11, 2012. The president, whose White House has refused to account for his whereabouts and activities during the hours of the Benghazi attack, was evidently busy preparing for the Las Vegas political fundraiser he flew off to the next day. Subordinates were left to sort out the jihadist murders of a U.S. ambassador and three other Americans, and the severe wounding of many others.
With the November election looming and the president’s campaign rhetoric about decimating al-Qaeda becoming laughable, the White House endeavored to defraud the American people into believing that the Benghazi massacre was not a terrorist operation foreseeably carried out by al-Qaeda affiliates on the eleventh anniversary of the 9/11 atrocities, but a spontaneous riot provoked by an anti-Muslim video. Susan Rice, Obama’s confidante and ambassador to the United Nations, went on the Sunday shows to weave the video yarn. Meanwhile, Michael Morell, a top CIA official with close ties to Secretary of State Hillary Clinton, obligingly purged references to al-Qaeda in agency talking points used for briefings on the massacre. Morell later deceived Congress about his edits and the fact that they were done in coordination with the White House. The deceptive scheme included a trumped-up prosecution of the video producer on charges related to parole (or “supervised release”)—though obviously his real “crime” in the administration’s eyes was exercising his First Amendment rights.
The Obama administration has also conspired with foreign elements to reduce the constitutional liberties of the American people. Since the start of his presidency, Obama has colluded with the Organization of Islamic Cooperation (a 57-member bloc of countries with large Muslim populations plus the Palestinian territories) on an international resolution prohibiting speech that casts Islam in a negative light. Following the Benghazi massacre, Obama shamefully compounded this campaign with not only the heinous prosecution of the aforementioned filmmaker but also (a) a television commercial (directed at Middle Eastern, not American, audiences) in which both he and Secretary of State Clinton slammed the film, and (b) an indignant proclamation in his annual United Nations speech that “the future must not belong to those who slander the prophet of Islam.” Quite apart from their transparent suggestion that the film, not Obama’s policies, triggered the murders of American officials, these gambits continued the administration’s campaign to erode the First Amendment’s protection of free expression.
The Second Amendment is threatened by the administration’s signing of a United Nations treaty on arms regulations in 2013, despite warnings by substantial bipartisan congressional majorities that there is no prospect of approval by two-thirds of the Senate, as constitutionally required for the pact to be ratified. The treaty would impose weapons-transfer regulations concocted by international bureaucrats—many of whom are anti-American and rabidly opposed to American firearms rights.
Finally, the administration has exploited Obamacare to impose regulations that run roughshod over the First Amendment’s freedom-of-conscience guarantee. Religious believers, including religious organizations that self-insure, have been required to provide coverage for abortifacients (as well as other forms of birth control) despite their religious objections and the inexpensive, ubiquitous availability of these substances to those who desire them.
There is more to say, in due course, about the administration’s performance. But this synopsis is enough, again, to press the question posed at that Montgomery County dinner gathering: “Why don’t we impeach him?”
Senator Cruz’s response that evening was just as Lone Star blunt: “I’ll tell you the simplest answer. To successfully impeach a president you need the votes in the U.S. Senate. With Harry Reid and the Democrats controlling the Senate, it can’t succeed.”12
Truer words were never spoken.
Time to put the cards on the table: There is no doubt in my mind that President Obama ought to be impeached and removed from office. I believe the Constitution’s framework—in particular, the Framers’ ingenious separation and balancing of competing powers within the central government, and between that government and the sovereign states—is indispensable to liberty, which is so central to the American character. The Constitution, moreover, is the social compact. It established the solemn terms that induced the states to ratify our fundamental law and form a more perfect union. It answers the aspiration of our Declaration of Independence: to institute a government the powers of which derive solely from the consent of the governed and the limited purpose of which is to secure our unalienable rights to life, liberty and the pursuit of happiness—not to rule us. It is history’s greatest proven generator of prosperity, security and human flourishing.
The rise of the administrative state over the last century has profoundly challenged the Constitution’s framework, but President Obama has quite intentionally undertaken to dismantle that framework. That is what the president’s commitment to “fundamentally transforming the United States of America” is all about. President Obama seeks to agglomerate power in the federal executive branch, enabling him, without meaningful opposition, to remake our nation. No longer would it be based on liberty, with the citizen guaranteed protection from oppressive government. The Obama dream is the nightmare about which Alexis de Tocqueville warned: a comparatively soft tyranny, in which the individual serves an “immense and tutelary” state and its centrally planned, punctiliously regulated society, enjoying only as much liberty as the government deigns to grant him.13
While I vigorously oppose it, I do not begrudge the president his vision of the just society: government redistributing wealth, hyperregulating property so it is no longer private in any real sense, enforcing a perverse notion of equality in which unequal treatment is applied to achieve a humanly unachievable equality of outcomes, and dramatically downsizing America’s role on the world stage. What I object to is the president’s pursuing these ends by violating his oath to preserve the Constitution, shredding the separation of powers, using the vast bureaucracy to repress his political opponents, and misleading the public about both his objectives and his failures. I believe the president should be impeached because I am not confident the nation can withstand nearly three more years of his governance. Oh, we would still be here, of course, but it would be a very different country, with the president having set precedents for worse to come.
Many Obama critics look hopefully to the 2014 midterm elections, calculating that a Republican landslide will put the GOP in control of both houses of Congress, which would purportedly derail Obama’s onslaught and end the constitutional crisis. This is wishful thinking. Even if we assume for argument’s sake that Republicans will have a big electoral victory in the fall, there would be little prospect of stopping the president.
Right now, Republicans control the House of Representatives, in which the Constitution vests primacy on taxing and spending. With forty-five seats in the Senate, where minorities enjoy parliamentary advantages they do not have in the House, Republicans also have the votes, right now, to stop new Obama initiatives and to support the House were the latter to stop financing the president’s excesses. And yet, cowed by the Obama-friendly media, they have offered nothing but token resistance. Republicans are paralyzed at the very thought of using the power of the purse. The one time that House conservatives did so—in attempting to defund or delay the implementation of Obamacare in 2013—they were savaged by the Beltway GOP leadership.
I do not see any of this changing after the midterm elections. Even if Republicans win, the same Republican leaders will still be running the show. Moreover, Republicans are not going to come close to winning the lopsided majorities necessary to override Obama vetoes. As a practical matter, that means the president will not need to veto many bills. Democrats, unlike Republicans, would stick together in the Senate and coordinate closely with House progressives to kill any GOP-sponsored legislation aimed at rolling back Obama’s agenda. If past is prologue, Republicans will rarely even attempt such legislation. They will shrug and tell us that resistance is futile.
Perhaps more significantly, American presidents have enormous power over the conduct of foreign affairs and over the direction of the sprawling executive bureaucracy. If Congress becomes more of a dead end for Obama than it is now, he will simply redouble his determination to rule by international agreements and executive orders—to be imposed on Americans by the administrative agencies that run the country day to day, and by the federal courts whose benches the president has been filling with hundreds of like-minded progressives since 2009.
The Constitution provides two congressional avenues for reining in presidential lawlessness: the power of the purse and the authority to impeach the president. They are extraordinarily powerful remedies—and they are the only remedies available. Some lawmakers appear to think there is a third: Unwilling or unable to persuade their colleagues to use the constitutional powers available to the legislature, they hope to have the courts do the work for them, and to look as if they are mounting real resistance by filing their ballyhooed lawsuits against the administration. It is a feeble strategy.14
It is not the purpose of the federal courts to resolve national controversies. They were created to remedy individual injuries but given no power to enforce their judgments. That, indeed, is why Alexander Hamilton anticipated that the judiciary would be the “least dangerous” branch: Controlling neither sword nor purse, it would be “least in a capacity to annoy or injure” the “political rights of the Constitution.”15 In fact, the law of “standing,” which addresses what grievances litigants may bring before courts, teaches that the more a controversy affects the body politic rather than the individual citizen, the less appropriate it is for judicial resolution. It is for just such controversies that we have political rights.
American jurisprudence counsels the judiciary to stay out of “political questions,” disputes between the two political branches over the extent of their competing authorities. Most judges will not give such suits the time of day. Even if some unexpectedly do, litigation takes years to resolve. When it finally ends, we are reminded that courts are powerless to give effect to their own orders. Indeed, the Obama administration is already scoffing at judicial rulings that, for example, stripped the federal government’s power (under the 1965 Voting Rights Act) to “preclear” state election laws, such as new voter ID provisions; and that invalidated the president’s “recess” appointments—when Congress was not in recess—to the National Labor Relations Board.16 When a federal judge in New Orleans ruled that the administration’s announced moratorium on deepwater drilling following the BP oil spill in the Gulf of Mexico was illegal, the administration simply stopped issuing drilling permits—in effect, imposing an unannounced moratorium that continued the lawlessness.17
In the unlikely event that judges presume to rule against the president, they must depend on his executive branch subordinates to enforce their directives. Good luck with that.
If Congress is unwilling to use its command over the treasury to coerce the president into heeding the limits of his power, impeachment is the only other alternative to the current Congress’s obviously preferred course of abdication. If you won’t defund malfeasance, you have to remove it—or accept it. There is no other course. Plus, as we shall see, the Framers saw impeachment as the appropriate response to presidential corruption, lawlessness, and infidelity to the Constitution. It is the designed tonic for faithless execution.
In the final analysis, though, my belief that President Obama should be impeached counts for nothing (beyond the duty of full disclosure to the reader). In fact, it counts for very little that members of Congress may believe that they can prove numerous impeachable offenses, and thus that the president should be impeached. Impeachment is not a legal matter of proving “high crimes and misdemeanors.” It is a political matter of will.
Senator Cruz was right. Although it is true that a simple House majority can vote out articles of impeachment, successfully impeaching a president means removing him from office—actually purging the lawlessness. Removal requires, in addition, the president’s conviction on articles of impeachment by a two-thirds vote of the Senate.18 That vote will never happen in the absence of extraordinary political pressure on these elected officials. That is, there would have to be such a robust national consensus that the president must be ousted that at least 67 of the 100 senators would vote to do it, notwithstanding the partisan and ideological ties many have with the president, the security of the six-year term that tends to make a senator (especially in the early years) less responsive than a House member to his constituents’ wishes, and the guarantee of media demagoguery over the very thought of impeaching a liberal Democrat.
At this point, while there is increasing angst over Obama’s policies and growing disapproval of his presidency, there is no public consensus that he should be removed from office. The legal case for impeachment is very strong. The political case lags far behind—and it is the only case that matters. Political cases have to be built.
