In the last few years, much has been made of the startling growth of government power, particularly government power housed in the executive branch.

From refusing to punish the overreaches of the NSA to the unconstitutional decision to not enforce the laws of the nation, President Obama’s administration has edged closer and closer to the line that divides American government from the democracies of old.

The Progressive movement, true to it’s name, doesn’t immediately move for everything it wants. It pushes, slowly, forcing opposition to progressive policies to withstand a crushing tide of pressure. The first steps in dismantling the separation of powers was not subtle, but came cloaked in a new phrase.

The Justice Department was instructed by the President to “not defend” the Defense of Marriage Act.

DOMA was a law that didn’t pass constitutional muster, and it is within the government’s power to simply not defend laws that it wants to fail. However, President Obama’s Justice Department memo justifying that decision was very interesting. Let’s break this memo down.

…the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.

Let’s be fair to the President. He believes it to be unconstitutional, and it has been within executive power in the past to not defend laws that the executive believes are unconstitutional. Thus far, while we may disagree with his with his behavior, it is within the scope of his power. He didn’t wipe the law off the books. In fact, the memo continues, to explain to the President’s base WHY he didn’t simply wipe the law off the books.

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.

This single paragraph spelled out explicitly the limits the Obama Administration believed they had. Honestly, I agree with the above paragraph.

The President can instruct Justice not to defend the law, but until the law has been repealed or struck down, the law remains in place. However, the administration’s words can and will be used against them here.

Less than a year after that memo was published, the Department of Homeland Security issued a memorandum that dictated the administration’s policy towards illegal aliens who were brought to the United States as children.

By this memorandum, I am setting forth how, in the exercise of our prosecutorial discretion, the Department of Homeland Security (DHS) should enforce the Nation’s immigration laws against certain young people who were brought to this country as children

Prosecutorial discretion, an important legal concept, is being used here as a mask. The memo’s main purpose is to do exactly what the President’s Justice Department said was outside of the legal limits of executive power less than a year earlier. Eric Holder’s Justice Department made the case that the reason they had to enforce DOMA, a law that the President believed was unconstitutional, because of “the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality”.

What happened to that standard?

It still exists, but is being ignored by the executive branch in a breathtakingly daring attempt to expand executive power.

And it worked.

Since then, the President has declined to enforce a variety of laws, ranging from (rather ironically) gun control laws, drug laws, and voter fraud.

The President has claimed to power to decide what laws are really laws; a power he does not have the constitutional authority to claim.

The President has claimed the power to postpone the implementation of duly-passed legislation.

This is a power that he does not have. This is a power purposefully removed from the executive by the founders, yet the congress has willingly surrendered it’s power.

There is a name for a head of state that has the power to single-handedly change the law of a nation, with or without the approval of a legislature.



Luke Stibbs | The University of Fraser Valley | @LukeStibbs