Mr. President, you are not a king

Last week, President Barack Obama announced he had granted commutations to 61 inmates serving sentences for a variety of crimes, including firearms crimes, drug trafficking and conspiracy or intent to distribute substantial amounts of cocaine. One-third of those whose sentences were commuted had been sentenced to life in prison.

These most recent actions bring Obama’s total commutations to 248 since taking office, a number which the White House proudly announced was more than the past six presidents combined. He has thus far commuted 92 life sentences. The president has reaffirmed his commitment to clemency as his administration continues its review of another 9,115 pending petitions from convicted criminals.

Though the pardon clause of the Constitution empowers the president to grant clemency, Obama’s actions last week reflect a broader inclination of the White House to take steps to subvert those laws which he believes to be contrary to his personal beliefs. Unfortunately, Obama’s continued undermining of federal sentencing laws are consistent with his now-established pattern of refusing to uphold any laws with which he personally disagrees. Obama’s conduct has doubtlessly increased the political polarization in Washington and has served to further undermine America’s confidence in the presidency.

Article 2 of the United States Constitution could not be clearer. In confirming that even the president is not above the bedrock principle of the primacy of the rule of law, Article 2 requires that the president “shall take care that the laws be faithfully executed.” The president simply cannot violate the separation of powers and usurp the obligation of Congress to create laws. While the president can certainly point out the unjust results of those laws with which he disagrees, he is not free to ignore his obligation to follow and enforce them. Unfortunately, Obama has taken presidential discretion to a new level by implementing laws never passed by Congress and, in effect, repealing those laws (such as sentencing guidelines) with which he disagrees. While his actions in commuting the sentences of a record number of convicted criminals concededly has a constitutional basis, Obama’s actions nonetheless further demonstrate this administration’s disrespect for the rule of law and the Constitution.

The administration’s refusal to enforce the Defense of Marriage Act (DOMA) is a perfect example. Though lawfully enacted, in 2012, then-Attorney General Eric Holder announced that the administration had unilaterally concluded DOMA violated the Fifth Amendment’s equal protection guarantee as applied to same-sex couples proclaiming that “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 more heightened standard of scrutiny.” Rather than faithfully executing the laws, Holder announced that, “The President has also concluded that [DOMA] as applied to legally married same-sex couples fails to meet that standard and is therefore unconstitutional.”

The Obama administration has followed a similar path in its handling of undocumented immigrants. In a 100-page report, the Obama administration’s Task Force on 21st Century Policing recommended that the Department of Homeland Security “decouple federal immigration enforcement from routine local policing for civil enforcement and non-serious crime.” In effect, the administration unilaterally made the decision to ignore federal law and direct immigration officials to defer deportation proceedings against as many as an estimated 1.7 million illegal aliens. Ironically, a year before issuing the directive that the law be ignored, Obama, in promoting the enactment of the Dream Act, acknowledged that, “The president doesn’t have the authority to simply ignore Congress and say, ‘We’re not going to enforce the laws you’ve passed.’” It was only when Congress would not deliver his legislative agenda that Obama shifted directions and ordered the implementation of what is, in effect, an amnesty scheme for illegal aliens that lacks congressional approval.

Unfortunately, the Obama administration will leave a legacy of action more consistent with a monarch rather than a president confined by constitutional boundaries. Obama may well want to change the sentencing guidelines, the Defense of Marriage Act, the federal immigration laws, drug enforcement laws (particularly as applied to marijuana), the federal minimum wage laws, or a host of other federal statutory schemes. However, merely because Congress refuses to follow his legislative agenda does not empower he and his administration to ignore the Constitution and create laws on their own or change laws by refusing to enforce them. Under the Constitution, Congress is charged with enacting laws and it is the obligation of the Executive to enforce the law as enacted. Obama has repeatedly proven that he wants to act as a legislator as well as an Executive.

Mr. President, you are not a king. Please respect the constitutionally-required checks on your power.