Section 1: US Government
When the US constitution was set up, the founders divided the new government into three co-equal branches of government: The Legislative, the Executive and the Judicial. Each was given separate areas of responsibilities, that were designed to make the branches work together to govern the county. The idea was that no one branch would grow to dominate the other two. To make sure that didn’t happen, the founders built a system of checks and balances into the constitution. This system consists of a series of powers that each branch has over the other two, to prevent any one branch from becoming dominant.
The Legislative Branch consists of the House of Representatives and the Senate, which collectively is known as the Congress. The members of Congress are elected on a statewide basis. Every state has 2 Senators and the number of Representatives per state is based on population and adjusted after every US Census.
The primary role of the legislature is to enact legislation. In addition they regulate interstate and foreign commerce, declare war and set fiscal policy, which is determining taxation levels and how that tax money is spent.
The Legislature has a number of checks over the other two branches. Regarding the Legislative Branch, it can override a Presidential veto of legislation passed provided it achieves at least a two thirds vote. It may impeach the President; it controls funding for any executive action and approves certain treaties and certain presidential appointments. Regarding the Judicial Branch, the Senate approves judicial appointments and the Congress may impeach and remove judges.
The Executive Branch consists of the President, the Vice President, their advisors and various departments and agencies that the Congress has established and funded. The Executive branch is responsible for enforcing the laws that Congress has passed. In addition, the President serves as the Commander in Chief of all US military forces. The Executive Branch has a number of checks over the other two branches. Regarding the Legislative Branch, the President may veto legislation that is passed, instead of signing it into law. He may call special sessions of congress, even though he cannot dictate what happens within the special session. The President may recommend legislation and may appeal directly to US citizens to pressure their members of Congress to pass that legislation. This informal check is known as the Bully Pulpit. Regarding the judicial Branch, the President appoints several levels of justices, subject to Senate ratification.
The Judicial Branch consists of the nine Justices who make up the Supreme Court as well as a system of lower federal courts throughout the country. The Judicial Branch has two checks over the Executive Branch. First, justices are appointed for life, so once appointed and confirmed, they are free of any Executive Branch control. And second, they can judge any executive action as unconstitutional through a process of Judicial Review. The Judicial Branch has one primary check over the Legislative Branch – it can find any legislative action unconstitutional.
Given that the membership of two of the three branches of the federal government is directly elected by popular vote and Electoral College, the branches must find themselves responsive to the will of the people or risk being voted out of office. Combined with checks and balances, the election process ensures the continuity of the democratic way of government.
Section 2: Federalism
Federalism is a system of government in which different levels of government co-exist in the same geographic area, but have separate and distinct powers and responsibilities. If there are only two levels of government, it is referred to as duel federalism. When the US constitution was drafted, it specifically enumerated powers that were to be retained by the Federal Government. Any powers not specifically enumerated as belonging to the Federal Government were to be retained by the individual states. This was a compromise between those that supported the creation of a strong Federal government, The Federalists, and those that wanted a weak Federal Government and strong States Rights, the Anti-Federalists. This was the raging political battle of the day, and the key sticking point in drafting the constitution. In the end, both sides felt they had drafted a constitution they could live with.
The Anti-Federalists were led by men like Patrick Henry, George Mason and Edmund Randolph, who were all afraid a strong Federal Government would evolve into a dictatorship or monarchy. The Federalists were led by men like George Washington, James Madison, Alexander Hamilton and Ben Franklin. They were strongly opposed to any type of dictatorship or monarchy, but felt a strong Federal Government was necessary for the long term security of the United States. Hamilton, Madison, and John Jay wrote 85 essays explaining their reasoning and motivation for supporting various sections of the constitution. Collectively, these 85 essays are known as the Federalist Papers and still serve as a guide to interpreting the US Constitution.
New Federalism refers to the transfer of certain powers previously held by the Federal Government back to the states.. Under Richard Nixon, there were several transfers. In his speeches Nixon referred specifically to the term New Federalism. Changes were made to welfare and job training so that states had more authority in designing and executing the programs. Block grants were given to the states to let them develop their own plans for resolving certain social issues instead of a one size fits all Federal approach. In the current Congress, Congressmen Paul Ryan is attempting to expand the use of block grants to the states to put more power in the state’s hands in providing a safety net for those in need, instead of the Federal Government doing it.
The theory of Cooperative Federalism refers to all levels of government working together – cooperatively – to govern the citizens. There are no (or very few) lines of distinction between who has the power to do what. It originated in Roosevelt’s New Deal under President Roosevelt, when the Federal and State governments worked together to craft a safety net for those out of a job, money and hope because of the Great Depression.
Certain elements of Cooperative Federalism continued to exist from the New Deal to modern times as Federal and State governments have worked together on certain problems. Under President Obama, however, Cooperative Federalism has been put on the back burner. For example, rather than allowing local school boards to develop their educational standards, Obama has rolled out Common Core, a set of Federal educational standards. Rather than working together with state and local governments to enforce Federal immigration laws, the Obama Administration has done everything it could to prevent states and local law enforcement agencies from getting involved in enforcing Federal immigration laws.
3. Civil Rights
The first 10 amendments to the US Constitution are collectively referred to as the Bill of Rights. I mentioned in Section 2: Federalism that, when the US Constitution was being developed, there was a political battle going on between Federalists and Anti-Federalists over the amount of power that was enumerated to the Federal Government, compared to what was retained by the States. Even though a compromise was reached, and the US Constitution signed and ratified, the Anti-Federalists continued to harbor reservations about the power held by the Federal Government. James Madison wrote the first 10 amendments to the US Constitution (which were passed by Congress and ratified by the States) to prove to the Anti-Federalists they need not be afraid of the Federal Government. The Bill of Rights documented in explicit detail, what the Federal Government couldn’t do.
The First amendment states, in part, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . America was founded, in large part, to escape religious persecution. In England, there was a state sponsored religion. In many other countries, certain religions were persecuted. Colonists braved death and hardship to come to America to freely practice their religious preferences. The Founding Fathers were overwhelming men of Judeo-Christian faith. They were not opposed to religion. For most it was a focal point of their lives.
The intent of the first amendment had 2 specific guarantees regarding religion. First, it guaranteed the Federal or State governments would not - could not - establish a state-sponsored religion. Second, it guaranteed the Federal and State governments could not prevent citizens from freely practicing their religious beliefs.
Fast forward to 2014, and the Founding Fathers would be turning over in their graves. Civil Rights activists, using the Judicial Branch, are using the First Amendment to eradicate any mention of any type of religion, especially Judeo Christian religions, from the public sector. Christians are not permitted to put up Nativity Scenes with the baby Jesus in swaddling clothes on public property. The Ten Commandments are not permitted to be posted on walls in Courtrooms. Public meetings like city or county commissioner’s meetings are not permitted to start with a prayer. High School graduations and athletic events are not allowed to open with a religious invocation. Court suits are regularly filed to remove the words Under God from the US pledge of allegiance. The US Air Force Academy has just last week told graduates that they could omit the words Under God from their oath upon graduating and becoming commissioned officers in the US Military. The list goes on and on.
The original intent of the Founding Fathers was to create a society where religion of all types could flourish. Today, civil rights activists have used the very law intended to promote religion, the First Amendment, to eliminate any reference to religion from the public area.
How did this happen? Bit by Bit. Drip by Drip. Over time, the US has evolved from an almost exclusive Judeo Christian country to one of only a Judeo Christian majority. The number of Atheists has grown. Immigrants no longer assimilate into the Judeo Christian Culture, preferring to hold on to their historical cultures and religious beliefs. If the City Commissioners allow the local Catholic Church to put up a Nativity Scene in the public park outside city hall, then other religions are going to petition the city for similar access. People of a religion that does not recognize the Ten Commandments as laws from God, are offended they have to see them posted in the courtroom. Civil Rights groups, led by the ACLU, have led the court fights to implement the letter of the law, rather than implementing the spirit of the law.
Civil Rights activists have totally changed the interpretation of what the First Amendment means. When passed, it was meant to protect religions of all types. Today, it is used to strike all religious references from the public square. The focus has shifted from protecting Civil Rights, to ensuring no one is offended by what they might see or hear.
The Second Amendment states that A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. At the time it was passed, states used volunteer militias to protect themselves. The earliest skirmishes of the War of Independence were fought between state militias and regular troops of the English Army. The same guns that were used to hunt game for survival were used to fight the War of Independence. Knowing this, the English Army would conduct raids, confiscating guns from the farmers and tradesmen who made up the militias.
At the time the second amendment was passed, there was still considerable concern over whether this new United States would survive. The states still used state militias to keep the peace and handle emergencies. The intent of the Second Amendment was to insure that individual citizens had the right to retain their weapons and their guns, so they could fight as a militia if needed.
Over time, law enforcement moved away from state militias composed of volunteer soldiers, toward full time policemen and state National Guards. Weapons were issued as part of the standard equipment, negating the need for employees or soldiers to bring their own guns. The general consensus remained, however, that any American citizen had the right to legally own firearms. That consensus was protected by the Second Amendment.
Today, however, that consensus interpretation of the Second Amendment is under siege. The new interpretation is that the Amendment only gives state militias – National Guard, Police Departments, etc. – the right to keep and bear arms, but it does NOT give individuals the right to keep and bear arms in the privacy of their homes. Numerous law suits have been filed and legislation has been drafted at all governmental levels, under the collective name of Gun Control. Unlike the movement to strike any mention of religion from the public square, however, Gun Control lobby has had limited success. The Judicial Branch, especially at the appeals level, has not generally supported this interpretation. While there are legislators that are doing everything they can to effect Gun Control legislation, the majority of legislators understand that the majority of citizens adhere to the original interpretation of the Second Amendment, which is that the Amendment protects the rights of individuals to keep and own firearms.
The Process of Incorporation refers to the process by which the Judicial Branch has applied the Bill of Rights to the states. Initially the courts held that the freedoms guaranteed under the Bill of Rights only applied to the Federal government. For a long time, there was no need for the Judicial Branch to hold otherwise.
The 14th Amendment changed all that. The amendment granted citizenship and due process to anyone born in the US, which was primarily intended to provide citizenship to former slaves who were freed by the Civil War. Many of the states that permitted slavery were very slow to provide the civil rights of the Bill of Rights to former slaves, however. In fact, they did everything they could to prevent former slaves from exercising their new civil rights. Eventually lawsuits were filed and filtered their way up the court system to where the Supreme Court ruled in a series of cases that the rights enumerated under the Bill of Rights of the US Constitution applied to state governments as well as to the Federal government.
Another example of the Process of Incorporation would be the series of Supreme Court Decisions under Chief Justice Earl Warren that forced states to follow Federal due process procedures.
Section 4: Current Events
In the first 2 sections, US Government and Federalism, we discussed the structure of the US Government and how it is supposed to work together. The three branches of government are supposed to work together, with all three being equal with a series of checks and balances to ensure that equality. Federalism clearly delineated the power of the Federal Government and what was retained by the State Governments. The blueprint for effective government was clearly established.
Over the years, there have been many times when that blueprint has been tested. A civil war was fought over who had the power to control slavery. The Federal Government wanted to end it, while many States wanted to keep it. President Roosevelt became frustrated over the Supreme Court invalidating many of his New Deal Initiatives so he attempted to pack the court with new appointees to change the ideological balance of the court. The Supreme Court under Earl Warren was extremely active in its decision-making and rulings.
Perhaps no President in modern times has attempted to tear up the old blueprint of effective government more than President Obama. He is often called The Lawless President or The Imperial President because so many of his actions are seen as either blatantly unconstitutional or so close to the line of unconstitutionality that the line is blurred. He is often seen as actively circumventing Congress because he knows that it will not bend to his will. Rather than working together with Congress or the States, he is attempting to govern by fiat.
Under the Constitution, Congress has the exclusive authority to make or change laws, and the President has the responsibility (not an option to do so) to execute and enforce the laws. The Affordable Care Act was passed in a rush on a partisan basis and was never properly vetted. In the process of executing it, it was clear that several things needed to be rewritten. The proper way to handle that would be to have the Congress pass amendments to the Act. Obama’s Democratic Party no longer had a majority in the House so he didn’t want to do that. Instead, he just issued arbitrary changes to the law, asserting he had the power to do so as a part of the process of executing the law. There are several lawsuits working their way through the Judicial Branch that will ultimately be heard by the Supreme Court. The majority of legal experts expect the Supreme Court to ultimately rule that those changes were unconstitutional – only the Congress has the power to change Federal Laws, not the Executive Branch.
A combination of the Constitution and Federal Laws require Congressional Approval for several of the President’s appointments to various offices. At one point in Obama’s tenure, three of the five appointees to the National Labor Relations Board became vacant. Obama wanted to appoint three strong pro-union members to the Board, but knew he could never get those controversial appointees passed Congress.
When the Constitution was written, there were long periods when Congress was in recess. This was because of the time it took for members to return to their states and then return back on horseback. The Founding Fathers knew that there might be times when the President might need to fill a position quickly, instead of waiting months to get Congressional approval. They wrote a passage in the Constitution that allows the President to appoint certain officials to office without required Congressional Appointments, called Recess Appointments.
Even when Congress is in session, it’s not in session 24/7. It closes for lunch or dinner, at the end of the day, over the weekend, for a holiday, etc. President Obama arbitrarily chose to declare that when Congress closed for a three day holiday weekend, they were in Recess, which gave him power to make Recess Appointments. Under his interpretation, he then made three Recess Appointments to the NLRB in 2012 and the three appointees took their place on the Board.
Many members of Congress were livid, arguing that under that interpretation, they could be declared in Recess when they closed for lunch. Arguing that interpretation was unconstitutional, lawsuits were filed and the Supreme Court unanimously ruled against the President and the three appointees were removed from the NLRB and all their decisions voided.
In December of 2013, President Obama appointed 3 new Justices to the 4th Circuit Court of Appeals for the District of Columbia. This is the Court that rules on challenges to government agencies like the EPA. What made this controversial was that while technically constitutional it was seen as packing the court; much like Roosevelt had tried to do to the Supreme Court. First, just weeks before Senate Majority Leader had changed the rules of how justices are appointed by eliminating the use of a filibuster in appointments, a very controversial change. Second, Chief Justice John Roberts had been asking for appointments to other Circuit Courts first. There were several vacancies on other Circuit Courts with very heavy workloads where the appointments were badly needed. The 4th Circuit had a light caseload comparatively and the existing Justices were handling the caseload there in a timely manner. The only reason to make those three appointments was to change the ideological makeup of the Court.
The Executive Branch is charged with enforcing the laws passed by Congress. They are not permitted, under the Constitution, to pick and choose which laws they will enforce and which they will not enforce. They are all to be enforced. Since 2009, however, the Obama administration has directed the Immigrations and Customs Department to selectively enforce the laws governing immigration, particularly as it relates to illegal immigration on the Southwest Border. This has opened up the border to massive increases in illegal immigration. Under the Constitution, the Federal Government has the responsibility to protect and defend US Borders. Under this selective enforcement, the States have been forced to step up their own enforcement of state borders, which conflicts with federal agencies like the Border Patrol where the state border is also the national border.
Members of Congress have gone so far as to say they will not pass immigration reform because they do not trust President Obama to enforce the law as they would write it. It’s a sad state of affairs when the Legislative branch accuses the Executive Branch of violating its oath to carry out its constitutional responsibilities.
In his latest State of the Union Speech, President Obama announced he had a pen and a phone and would use them to circumvent Congress whenever he could. This clearly defines an adversarial relationship between the Executive and legislative Branches. This is not what the Founding Fathers intended.
Throughout this report, I have dealt only with facts. You did, however, ask for my personal thoughts on this current event. First, I defined the current event as an attempt by President Obama to govern by fiat, instead of following the constitutional blueprint for governing the country that was discussed in the first two sections.
President Obama has chosen to govern this way because of a total lack of experience at governing. He doesn’t understand how to work with a Legislative branch. He doesn’t understand the nature of compromise to move forward. With him, it’s always a zero sum game. He is incapable of seeing how to get to where both sides win.
President Obama had only a short stint in the Illinois Legislature where he was never credited with passing any legislation. He had an even shorter stint as a US Senator, where again he had no legislative accomplishments. He has no experience at running anything where there is give and take with peers or employees. Rather than learning how to govern, he took the easy way out, deciding to govern by fiat and executive authority. It’s a testament to the strength of the structure of the US Government that it will continue to survive long after President Obama is out of office.
Frohnen, Bruce, ed. 1999. The Anti-Federalists: Selected Writings and Speeches. Washington, D.C.: Regnery Pub.
Wills, Garry. 2001. Explaining America: The Federalist. New York: Penguin Books
Berger, Raoul. The Fourteenth Amendment and the Bill of Rights. Norman: University of Oklahoma Press, 1989.
Nelson, William E. The Fourteenth Amendment: From Political Principle to Judicial Doctrine. Cambridge, Mass.: Harvard University Press, 1988