Livy, the famed Roman historian, noted that, “[a] fraudulent intent, however carefully concealed at the outset, will generally, in the end, betray itself.” Indeed, his words were both true in his own time and prophetic in the future.
On Saturday, the Continuing Resolution to keep various government spending programs, spending – otherwise known as the CRomnibus – passed through the Senate after having just passed the House last Thursday.
While many conservatives baulked at the $1.1 trillion price tag and the continued funding for Obamacare, the Republican betrayal to their base cut much deeper.
It was barely a month ago that countless Republican promises were made to voters vowing to stand against President Barack Obama’s imperial presidency, to stand for the rule of law, and to stand against amnesty.
Upon these promises and more, Republicans swept the 2014-midterm elections.
Indeed, even after the elections, House majority leader John Boehner (R-OH) continued the rhetoric by publicly vowing to fight the White House “tooth and nail” on amnesty.
Yet, barely a month after the elections, these promises were all betrayed – with the help of John Boehner.
Republicans by working to pass the CRomnibus bill, which provides full funding for amnesty for a period of time, have now given President Obama’s executive amnesty plans the color of congressional approval. Such plain consent by Congress is indispensible to surviving a Supreme Court challenge to executive overreach.
Thus, with their vote to provide funding for amnesty, congressional Republicans effectively voted to ratify President Obama’s executive actions on amnesty – something that the current Senate majority leader, Harry Reid (D-NV) and President Obama could not have accomplished without Republican support.
A seminal case involving the limits of executive power studied in countless law schools, and one likely known by President Obama who taught classes in Constitutional law at the University of Chicago Law School, is Youngstown Sheet & Tube Co. v. Sawyer.
The Supreme Court in Youngstown, a case involving executive seizure of private property in the absence of congressional approval, essentially created three categories in which to evaluate the constitutionality of executive authority.
In order of legitimacy:
– Presidential authority is strongest when acting with the expressed or implied consent of Congress
– Presidential authority is weaker when Congress is silent (zone of twilight)
– Presidential authority is at its nadir when defying Congress
At the top of the list, executive actions within this category are likely to be found constitutional and at the bottom, executive actions are likely to be found unconstitutional.
Prior to the passing of CRomnibus, President Obama’s best argument for surviving such a challenge to his executive action on amnesty was to try to convince the Supreme Court that his actions were within the zone of twilight and not within the last category. This would have been a difficult, but more importantly, very weak position to argue from and thus an argument not likely to succeed.
However, after CRomnibus, President Obama’s argument becomes much stronger with, at worst, tacit congressional approval for amnesty – this is simultaneously a much easier argument to make and a much stronger argument to win over the Court.
Indeed, it would be difficult for even the most conservative justice on the Supreme Court to not view this vote to fund amnesty as anything other than a congressional approval of amnesty.
So, with their affirmative vote on CRomnibus, Republicans have not only voted to fund amnesty, but also voted to swing the pendulum of legitimacy in favor of President Obama’s amnesty plans just a month after promising voters the opposite.
This of course allows Republicans who voted for CRomnibus to publicly bemoan any executive action on amnesty while voting to help ensure that amnesty will survive a Supreme Court challenge to executive overreach. Resultantly, while Republicans, such as Boehner and others, effectively satisfied their corporate donors on Wall Street, they also worked to shield themselves from Main Street anger behind the black robes of the Supreme Court.
Such an ending would not be possible without the perfidy of those Republicans who knowingly worked to ensure the passing of CRomnibus while promising voters to stand for them in Washington.