KTKZ Conference at William Jessup University
Hi everybody. I’m Congressman Tom McClintock and I want to welcome you to William Jessup University for the KTKZ Conference on Congress and the Imperial Presidency. I wish I could be there personally, but as you know, Congress is in session today.
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 it and adjudicated it. All the powers were concentrated in the same hands – the very definition of tyranny. 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, uniformly and without favoritism.
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 most certainly 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.
Yet this President has now asserted an entirely unconstitutional power to nullify existing immigration law by ordering the executive branch simply to ignore it. He’s ordered 34 million green cards to allow businesses to hire illegal immigrants in direct violation of existing federal law that explicitly forbids their employment. Throughout our nation's history, executives have tested the limits of their power, but these acts cross 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.
Short of impeachment, which history warns us requires overwhelming public consensus to invoke, Congress has three powers that are now being brought into play.
The legislative branch has the power of the purse, which the House exercised last month when it sent an appropriations bill to the Senate that funded the entire Department of Homeland Security while forbidding the use of any funds to carry out the President’s unlawful and unconstitutional seizure of legislative authority. But that bill is now stalled due to opposition from Democratic senators who seem to place loyalty to party ahead of loyalty to the country.
The second power held by Congress is the ability to invoke judicial intervention. 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.
While individual members of Congress lack standing to sue, the Congress as an institution does have that ability, and the House leadership has assured us that it is drafting a resolution to do so and will soon bring it to the House floor. Meanwhile, states are moving forward with their own suit. I cannot believe that even the most partisan 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 practical choice but to back down or face a catastrophic public and congressional backlash.
The third power is the ability of Congress to provide oversight over the government – to investigate this and other Constitutional abuses – and expose the facts, hold officials accountable, and offer insight into the remedies available both to the Congress and to the people. At the moment, various committees are pursuing these investigations, and ultimately Longfellow’s observation will apply, that “The wheels of the gods grind slow, but they grind exceedingly fine.” The truth will come out and reformation will follow.
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 potentially lethal to a Republic such as ours.
Indeed it was Julius Caesar’s seizure 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.
People often ask me, “What can I do?” The answer is, A LOT. The American Founders often worried about a generation that might fail to pass on the principles of freedom to the next.
We live in an age when a sizeable portion of our population does not understand the importance of our Constitution; how it protects our freedom; and why it is written the way it is. I have found, when you explain its principles to people, they get it. After all, the American Founders didn’t call them self-evident truths for nothing. But we all need to reach out to everyone we can influence, and explain to them the difference between the rule of law and the rule of one man – and how the Constitution protects our freedom by dividing the powers of government.
Here’s the paradox: if you break any law passed under the Constitution, there is a huge, armed bureaucracy that will swing into action. Break any of those laws, someone with a badge and a gun will eventually show up on your doorstep.
But if you break the Constitution, what happens? Nothing. There are no penalties for breaking the Constitution. Why is that? It is because the Constitution was written to be self-enforcing. But that only works if the powers of government are evenly balanced. And that, in turn, only works when those who exercise those powers are devoted and obedient to that Constitution. And that only works when WE THE PEOPLE insist upon it through the votes we cast in elections.
And if we ever stop insisting on it, if we elect enough officials who view the Constitution with the contempt we see from this President, we will lose our Constitution and the freedom it protects.
The Constitution belongs to “We the people;” its preservation depends on “We the people;” and never has it been in greater peril than it is today.
Late in life, Thomas Jefferson penned this haunting question to John Adams. “Yes, we did create a near perfect union. But will THEY keep it, or will they, in the enjoyment of plenty, lose the memory of freedom?”
Let that not be the epitaph of our generation. Of our generation, let it be said that just when it looked like our Constitution was fading, this generation of Americans rescued it, renewed it, and passed it on inviolate to the many generations of Americans who followed.