Growing Constitutional Crisis

"A growing crisis in our constitutional system threatens to fundamentally alter the balance of powers — and accountability — within our government," write liberal academic law professor Jonathan Turley (George Washington Law) and conservative U.S. Senator Ron Johnson (R-Wisc) in a Washington Post op-ed.

This crisis did not begin with Obama, but it has reached a constitutional tipping point during his presidency. Indeed, it is enough to bring the two of us — a liberal academic and a conservative U.S. senator — together in shared concern over the future of our 225-year-old constitutional system of self­governance. [snip]

In our view, the gridlock in Washington is not simply the result of toxic divisions. The dysfunctional politics we are experiencing may in part be the result of a deeper corrosion — a dangerous instability that is growing within our Madisonian system.

That dangerous instability concerns:

1. The growing shift of authority to federal agencies — "what is essentially a fourth branch of government" — that has "dramatically reduced [Congress's] ability to actively monitor, let alone influence, agency actions."
2. The refusal of courts to review constitutional disputes because of an overly constricted view of the standing of lawmakers to sue and other procedural barriers.
3. The rising share of federal spending that is not under [Congress's] control.

Imperial Presidency

In a surprising headline, the Christian Science Monitor asks, Is Barack Obama an imperial president?

Obama, a former constitutional law professor, was once skeptical of the aggressive use of presidential power. During the 2008 campaign, he accused President George W. Bush of regularly circumventing Congress. Yet as president, Obama has grown increasingly bold in his own use of executive action, at times to controversial effect.

The president (or his administration) has unilaterally changed elements of the Affordable Care Act (ACA); declared an anti-gay-rights law unconstitutional; lifted the threat of deportation for an entire class of undocumented immigrants; bypassed Senate confirmation of controversial nominees; waived compliance requirements in education law; and altered the work requirements under welfare reform. This month, the Obama administration took the highly unusual step of announcing that it will recognize gay marriages performed in Utah – even though Utah itself says it will not recognize them while the issue is pending in court.

Early in his presidency, Obama also expanded presidential warmaking powers, surveillance of the American public, and extrajudicial drone strikes on alleged terrorists outside the United States, including Americans – going beyond Mr. Bush's own global war on terror following 9/11.

Jonathan Turley, a constitutional scholar at George Washington University in Washington, D.C, and an Obama voter, told CSM staff writer Linda Feldman:

"It's really the character of the actions, and their subject. In my view, Obama has surpassed George W. Bush in the level of circumvention of Congress and the assertion of excessive presidential power. I don't think it's a close question." [snip]

"President Obama meets every definition of an imperial presidency. He is the president that Richard Nixon always wanted to be."

Feldman lists several examples of the Obama Administration's "controversial power plays" using the regulatory changes. And she gives insight into why Washington is buzzing with the news that John Podesta, former chief of staff to Bill Clinton, has recently been brought on board Team Obama from the Center for American Progress:

Most important, his passion is climate change, and he's a big believer in executive action – by the president himself, as well as via agency rules and regulations. [snip]

"John is a guy who knows how to get things done," says Elgie Holstein of the Environmental Defense Fund and a former colleague of Podesta's in the Clinton White House.

The article is well worth reading in its entirety.

Killer Drones & Spying on Americans

The seriousness of law professor Jonathan Turley, followed by the humor of Jon Steward. Hurley argues that, with respect to using drones abroad for targeted killing purposes, "President Barrack Obama is at war with the rule of law." Steward "busts Obama on his lies about surveillance."

Law Prof Warns of New Assaults to Free Speech

"Free speech is dying in the Western World," writes GWU law professor Jonathan Turley, who catalogues efforts to limit free speech in Europe and the U.S.

Such efforts focus not on the right to speak but on the possible reaction to speech — a fundamental change in the treatment of free speech in the West. The much-misconstrued statement of Justice Oliver Wendell Holmes that free speech does not give you the right to shout fire in a crowded theater is now being used to curtail speech that might provoke a violence-prone minority. Our entire society is being treated as a crowded theater, and talking about whole subjects is now akin to shouting “fire!”

Turley identifies 4 rationales used by speech-restricting advocates: