As Donald Trump prepares to take office Friday, thoughts of President Obama’s legacy looms. Simply put, many of the president’s signature achievements are built on a foundation of unconstitutional executive overreach. Barack Obama’s mark on U.S. history is that of an imperial president. His legacy is one of governance by fiat.
Article I of the U.S Constitution endows the Congress with the legislative power of government – the power to make laws. The presidency, as part of the executive branch, is given the Article II, Section 3 requirement of faithfully executing the laws passed by Congress.
After the Democrats lost control of the Senate in 2014, Obama declared at his first Cabinet meeting: “We’re not just going to be waiting for legislation … 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.”
He assumed for himself Congress’ lawmaking power. Ignoring the people’s representatives in Congress, the president repeatedly and unconstitutionally sought to implement his far-left agenda through executive action.
His efforts bore fruit in the passage of several liberal policies. But now, with November’s election shake-up, whatever Obama accomplished through executive action can be undone by executive action.
Repealing Obama’s unconstitutional executive orders is exactly what President-elect Trump has pledged to do. Here is where he should start.
President Obama unilaterally superseded the nation’s immigration laws by illegally granting amnesty to thousands of illegal immigrants through his Deferred Action on Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) executive orders.
This, of course, came after the president said at least 22 times that he did not have the power to make sweeping, unilateral moves such as granting temporary legal status to illegal immigrants via executive order. The amnesty-granting move was so outrageous that even the Washington Post editorial board characterized the move as “unprecedented” and wrote “Republicans’ failure to address immigration also does not justify Mr. Obama’s massive unilateral act.”
After the Obama administration failed to see cap-and-trade legislation become law in 2009, the president decided to take action himself. Through the EPA, the president instituted a series of rules that effectively instituted cap-and-trade (essentially a tax on carbon emissions). The plan is a job-killer (especially for the already-struggling coal industry) and raises costs for all U.S. households. It also illegitimately reinterprets the Clean Air Act to achieve its policy and is facing several court challenges from the states. President-elect Trump can put an end to the onerous climate regulations by instructing the EPA formally revoke the plan.
Executive Order 13672 required all federal contractors and subcontractors to affirmatively state that they make employment decisions without regard to sexual orientation or gender identity. There was no exemption for religious liberty, and those who refused to comply with the order were declared ineligible to contract with the federal government. What this policy did, in effect, was restrict the First Amendment liberties of federal contractors, such as military chaplains, by forcing them to use vendors who disregard the religious teachings on marriage and gender identity respective to their denominations.
In the particular case of a military chaplains, they are required to have the backing of an endorsing body. If that endorsing body – say the Catholic Church – has a doctrine that disagrees with the progressive view on sexual liberty, that body will not be permitted to contract with the government and the chaplain will lose his sponsor, rendering him unable to serve. To preserve the First Amendment freedoms of federal contractors, this executive order must be revoked.
Obama issued guidelines to public school districts in the U.S. admonishing them to let transgender students use the bathroom of their self-proclaimed identity. Though the letter does not have the force of law, Obama’s Department of Education went ahead and threatened to revoke federal funding to schools that do not permit confused boys and girls into the bathrooms and locker rooms of the opposite sex.
The most troubling aspect of Obama’s actions is, as CR’s Nate Madden wrote, that “the administration has declared itself a scientific arbiter of what constitutes the very nature of man and woman.” The government should not have such power, and President-elect Trump should instruct his nominee for secretary of education, Betsy Devos, to roll back the Department of Education’s funding threats.
President Obama upturned a two-decade standing policy of the United States when he revoked economic sanctions against the terrorist-sponsoring Iranian regime in early 2016. The move freed up as much as $150 billion of frozen Iranian assets under the assumption that Iran would comply with the nuclear deal negotiated by the Obama administration.
A year later, we know that Obama secretly gave Iran exemptions on certain provisions in the deal, and even with these exemptions, Iran is violating the terms of the agreement. President-elect Trump should reimpose sanctions on day one.
In early 2016, President Obama announced sweeping executive actions on gun control that instructed the Bureau of Alcohol, Tobacco, Firearms and Explosives to redefine who is “engaged in the business” of selling firearms. By broadening that term, the administration could classify anyone who sells a firearm as a “firearms dealer,” potentially subjecting private sellers to a slew of onerous regulations meant to apply to retail firearms dealers.
Redefining a law to apply to individuals Congress did not intend the law to apply to is an unconstitutional overreach by the executive branch. Further, placing an undue burden on gun owners potentially infringes on the Second Amendment rights of U.S. citizens. As a strong supporter of the Second Amendment, President-elect Trump ought to put these regulations on the chopping block.
In the mid-1990s, a Republican-controlled Congress led by Newt Gingrich successfully compromised with President Bill Clinton to enact welfare reform that placed a work requirement on the Temporary Assistance for Needy Families (TANF) program. These work requirements were made mandatory and nonwaivable, and the subsequent success of the welfare reform led to a drop in welfare recipients and a decrease in child poverty.
President Obama illegally claimed the authority to waive the TANF work requirements. As a result, more individuals are back on on the government dole. If President-elect Trump wishes to pursue a pro-growth policy and get people working again, he should reinstate welfare reform requirements.
These are just a few of the many executive orders issued by President Obama that are under review by the incoming Trump administration. Obama staked his legacy on the election of a Democrat to succeed him and uphold his policies.
It is now in President-elect Trump’s power to ensure the Obama legacy is enshrined in our memories, not in our laws.
Chris Pandolfo is a staff writer and type-shouter for Conservative Review. He holds a B.A. in politics and economics from Hillsdale College. His interests are conservative political philosophy, the American founding, and progressive rock. Follow him on Twitter for doom-saying and great album recommendations @ChrisCPandolfo.
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