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12.19.2014 1

Bush’s original sin on executive action

bushBy Robert Romano

A little more than six years ago, Congress took up legislation that would have bailed out then-troubled automakers GM and Chrysler with $14 billion of taxpayer-funded loans.

The bill passed easily in the House, but, as it turned out, ran into a brick wall in the Senate. It would fail to achieve cloture with 60 votes, going down in flames on Dec. 11, 2008, by a vote of 52 to 35.

But, as readers will recall, that was not the end of the story.

To save the car companies, then-President George W. Bush opted to use $17 billion from the Troubled Asset Relief Program (TARP), which had been enacted to extend loans to financial institutions caught in the mortgage backed securities meltdown.

There was nothing in the law that had allowed the bailout funds to be used for auto manufacturers. The Administration just made it up.

On Dec. 19, 2008, exactly six years ago, Bush announced: “Congress was unable to get a bill on my desk before adjourning for the year. This means the only way to avoid a collapse of the U.S. auto industry is for the executive branch to step in.”

Sound familiar?

To be fair, presidential power had been growing for a century. What made this different was that Congress had just rejected the very bailout Bush ended up implementing.

One of Bush’s final acts in office was to teach the incoming Obama Administration that executive lawlessness was not only acceptable, but pretty much without recourse. The Constitution, and its separation of powers, was a piece of paper. Who needed Congress to act?

It was this original sin that paved the way for President Barack Obama. Fast forward six years, and the President seems to have taken that lesson to heart.

Obama issued a regulation requiring religious-affiliated institutions like hospitals, colleges and charities to provide contraception even if it violates their own teachings — an egregious violation of the freedom of religion under the First Amendment.

Obama also delayed the employer and insurance mandates under the health care law for a year. There was nothing in the law that allowed it. Obama just did it.

Obama pretended a congressional recess into existence to make radical appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board (NLRB). The Supreme Court had to intervene to stop him.

His Federal Housing Finance Administration arbitrarily allowed Fannie and Freddie mortgages that are 25 percent higher than market value to be refinanced when the law placing the GSEs in conservatorship never allowed it. The law explicitly stated that the refi’s shall “not exceed 90 percent of the appraised value of the property to which such mortgage relates.”

He ordered an attack on Libya without so much as consulting with Congress. He considered one in Syria and nearly pulled the trigger in 2013, before just going ahead with it in 2014, and threw in Iraq, too, for good measure.

His Justice Department took on the role of a court and declared the Defense of Marriage Act to be unconstitutional, and refused to defend the law when that was its role — whether it agreed with it or not.

His EPA arbitrarily declared carbon dioxide, a gas essential to life itself, to be a “harmful pollutant” covered under the Clean Air Act, even though Congress never amended that law to include carbon emissions.

His Federal Reserve printed $1.25 trillion out of thin air to buy back dodgy securities from banks that bet poorly on U.S. housing, including $442.7 billion that was given to foreign banks. In total, it created $3.6 trillion to bail out the world in its quantitative easing bid.

Last year, it was revealed that the Administration was continuing to implement a National Security Agency program gathering records on every American, using the Patriot Act as a legal justification even though the author of the law, Rep. James Sensenbrenner (R-Wis.), says the blanket surveillance is expressly forbidden by that law, not to mention the U.S. Constitution. This is another one working its way up to the Supreme Court, and it too began under the Bush Administration.

The Treasury and the IRS, not content with its ad-hoc persecution of tea party groups, the day after Thanksgiving issued a regulation rewriting rules surrounding 501(c)(4) tax-exempt organizations all with one aim, to silence political opponents. Although the action has been delayed, it is not dead.

Most recently, he decided to grant executive amnesty to 4.5 million illegal immigrants with U.S.-born children.

Oh, and he just normalized relations with Cuba.

All without any votes in Congress to amend the law. Congress could adjourn for the next two years, and we’re confident Obama would keep right on “governing.”

It would be Orwellian and surreal if Obama were not so brazen about it. It’s his political philosophy: We know because he told us, speaking at a Cabinet meeting on January 14: “[W]e are not just going to be waiting for a legislation in order to make sure that we’re providing Americans the kind of help that they need. I’ve got a pen and I’ve got a phone — and I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward…”

There’s a reason comparative politics textbooks at our nation’s universities describe the U.S. as a presidential system, rather than a constitutional republic. And it’s not because of liberal ivory tower bias. It’s because, in reality, that is our de facto, post-constitutional form of government.

Meaning, in 2015, Congress must act to reassert its constitutional prerogatives to save the separation of powers for future generations. It will take members of both political parties. Unconstrained executive power is not a partisan issue, it is a mortal threat to limited government and the rule of law.

Otherwise, like Bush, Obama will be setting a far more dangerous precedent — one that will be wielded by a future administration without any regard for the law at all. First, it bends, and then it breaks.

Robert Romano is the senior editor of Americans for Limited Government.

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