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Congressman Tom McClintock

Representing the 4th District of California

The Constitutional Crisis

December 3, 2014

The genius of our Constitution can be found in the separation of powers that has preserved our freedom for 225 years.  The American Founders recognized that what had gone so terribly wrong in Europe was that the same organ of government that made the law also enforced that law and adjudicated it.  All the powers were in the same hands. The Founders wanted to protect their new nation from such a fate.  So they divided the powers of government.

         Congress and Congress alone makes the law.  “All legislative power herein granted shall be vested in a Congress of the United States.”  You want many voices in that decision-making process.  You want a great, big, messy debate. That's the Congress. 

        Once that decision is made, it needs to be carried out by a single will, a single branch headed by one individual whom the Constitution commands to take care that the laws be faithfully executed.  One person does not get to make the law in this Republic.  The president is called upon to enforce the law.  

        Fundamentally, that means he does not get to pick and choose which laws he'll enforce and which laws he'll ignore.  He does not get to pick and choose who must obey the law and who gets to live above the law, and he does not get to change laws or make laws by decree.  That is the difference between the American Republic that prides itself on being a nation of laws and not of men and the European despots of old who boasted that the law was in their mouths. 

        Last week the president asserted an entirely unconstitutional power to nullify existing immigration law by ordering the executive branch simply to ignore it.  Further, he's ordered 34 million green cards to allow businesses to hire illegal immigrants despite federal law that explicitly forbids their employment.  Throughout our nation's history, executives have tested the limits of their power, but this act crosses a very bright line. 

        Fortunately, the American Founders anticipated that someday a president might attempt to subvert the Constitution in this manner and they provided a variety of defenses available to both the legislative and the judicial branches. 

        The legislative branch has the power of the purse, but that power is temporarily constrained by the partisan division between the House and the Senate. Fortunately, the American people have acted to end that division in January.  

         But I fear that any confrontation between the executive and the legislative branches could ultimately end in stalemate.  The third branch of government, the judiciary, must be brought into this process. Since our earliest days, the Supreme Court has guarded our nation from unconstitutional acts by both the legislative and executive branches, and that role is desperately needed now.  

         I believe there's no substitute for Congress doing everything within its power to invoke judicial intervention.  I cannot believe that even the most devoted liberals on the bench can be comfortable with this brazen act of usurpation.  Assuming the court stands with the Constitution, the president would have no choice but to back down or face a catastrophic public and congressional backlash. 

        Whether we choose to recognize it, this is a full-fledged constitutional crisis.  If allowed to stand, this precedent renders meaningless the separation of powers and the checks and balances that comprise the fundamental architecture of our Constitution.  If it stands, every future president, Republican and Democrat, will cite it as justification for lawmaking by decree.  The seizure of legislative authority by the executive is fatal to a Republic such as ours. 

        Indeed it was Julius Caesar’s usurpation of the Roman senate’s legislative prerogatives that brought down the Roman Republic and began four centuries of dictatorship.  Once the rule of one man is established over the rule of law, it's a very difficult thing to stop.  

        Unlike every law that's passed under our Constitution, the Constitution itself has no penalties for those who break it.  The reason is that the Constitution was written to be self-enforcing.  But that only happens if the powers of government are evenly balanced.  The Founders relied on each branch acting to keep those powers in balance.

        Now, in our time, that responsibility is ours.