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Ordered Liberty

Faithless Execution: Presidential Dereliction and Duplicity

June 3rd, 2014 - 5:48 pm

My new book, Faithless Execution, is principally about presidential lawlessness. In addressing that topic, I make the point that it is not lawless for a president to refuse to execute a law as to which he has a good faith constitutional objection.

The Framers, after all, were not just worried about executive overreach; they were at least equally concerned about what Hamilton referred to as “The propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments.” This is relevant to the ongoing controversy about whether, in carrying out his unconscionable swap of five senior Taliban and Haqqani network terrorists, the president acted lawlessly.

A congressional statute—the National Defense Authorization Act—presumes to impose a requirement of 30-days’ notice to lawmakers before the president may transfer enemy combatant detainees out of Guantanamo Bay. There is no question that President Obama willfully ignored this statute—the administration admits as much. But was he obliged to comply with it?

As I’ve been contending, there is a very colorable argument—I would say, a convincing argument—that the statute is unconstitutional. The commander-in-chief in wartime has near-plenary power over the disposition of enemy combatants, and supremacy in the conduct of foreign affairs. Congress may properly use its power of the purse to deny the president funds to transfer prisoners—particularly to transfer them into the United States. But it may not act as super-executive by micromanaging how the president carries out his prerogatives. We may find the president’s decisions in this regard to be reprehensible—I certainly do. But that does not make them unconstitutional … what is unconstitutional is a statute that purports to trim the president’s constitutional powers.

Is that the end of the matter? Not by a long shot. As I’ve also contended, the president’s failure to comply with a dubious statute is a mere footnote to his truly egregious offense: replenishing enemy forces at a time when the enemy is still conducting offensive terrorist operations against our armed forces. It would be difficult to fathom a more outrageous dereliction of duty by the commander-in-chief.

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Top Rated Comments   
It was not so much Woodward and Bernstein who forced Nixon out but members of the republican party who refused to sacrifice themselves and the nation to support him. His own AG appointed a special prosecutor; something Eric Holder will not do because Holder is as lawless as the president. There are no Woodward and Bernstein now because the media is a de facto Praetorian Guard for this administration, so the information deficit voter is distracted with glittering nonsense to cloud the ongoing Constitutional crisis. To make matters worse, John Boehner is incapable of the required intestinal fortitude to pick a fight with a lawless black president and the creepy Harry Reid runs the senate like the Soviet Politburo. Forty years ago, Richard Nixon stood on an island alone.
15 weeks ago
15 weeks ago Link To Comment
As Jonathan Turley, hardly a fire breathing Conservative noted last night on FOX News, Barack Obama has become the very President Richard Nixon wanted to be - without the accomplishments, of course.

I was a teenager when Richard Nixon was forced to resign. I remember it well. How much has America changed the last 40 years?

In the last eighteen months, I have now witnessed Barack Obama commit the same basic offensives Richard Nixon was forced to resign, only at a far more egregious level where either people have died and the President lied, or people are going to die. Where is Carl Bernstein? Where is Bob Woodward? Why is America's feckless media not all over this, writing books, making movies, frothing at the mouth over our new, Imperialist President and demanding his resignation?

When there is no longer accountability for our Executive position, and apparently he or she is free to do as they wish without restraint and can just ignore the rule of law, and 95% of the so called watch dog media is simply lap dog and cover for nothing more than an inane thug who couldn't manage a lemonade stand, then I live in a country that is a shell of its former self which transpired in one, perhaps two generations.

And the only real questions I am left with are:

"Why is now much different than King George III of England and how long am I going to continue to sit on my ass and just whine about it?"

Gang, we can no longer afford to just share complaints about how poorly and corruptly our federal government is being administered. The ballot boxes are stuffed and free stuff has won the day.

We can't go on this way much longer...

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15 weeks ago
15 weeks ago Link To Comment
The Taliban just released the video of the handover of the TRAITOR Bergdahl to American Special Forces at the end of the video there is a message it reads 'Don' (sic) come back to Afghanistan".
The TALIBAN is LAUGHING at you America and your WIMP of a President and taking the piss.
Thanks to OBOZO the USURPER of course.
15 weeks ago
15 weeks ago Link To Comment
All Comments   (38)
All Comments   (38)
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McCarthy needs to check section 8 of Article 1. Authority over captures resides with Congress.

Clause 11. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
15 weeks ago
15 weeks ago Link To Comment
Thank you, Mr. McCarthy, for clarification of 'high crimes and misdemeanors' and impeachable offenses. But, like everything, this is open to interpretation. My interpretation: 1) When POTUS mislead the Senate as well as the American people about Obamacare, it was injurious to the country and, therefore, an impeachable offense; 2) When POTUS denied Congress info about 'Fast & Furious' under Executive Privilege, it was done to deceive Congress and therefore injurious to the country and an impeachable offense; 3) In Benghazi, when POTUS did not send aid to Amb. Stevens et al., it was done to eliminate questioning about a diplomatic mission and CIA post that was unknown to the American public as well as the Libyan gov't. -- so that POTUS could get re-elected. In other words, he kept facts hidden which, if known, would've hurt his re-election. Is this an impeachable offense? 4) The facts in Benghazi -- still unknown -- seem to indicate that Amb Stevens was carrying out a policy of supplying weapons and men to Syria from Libya through Turkey. Since some of the men being supplied with weapons were al Qaeda, this would seem to be an impeachable offense and/or treason: Giving aid and comfort to the enemy. Do my interpretations mesh with yours?
15 weeks ago
15 weeks ago Link To Comment
Is Obamacare unconstitutional? It forces people to buy insurance and, as part of the application process, it forces people to provide highly personal information. This is an invasion of privacy and should be considered a violation of the fourth amendment. Afterall, the gov't is really doing a 'search and seizure' of private information that it should have to get a search warrant for. Any thoughts?
15 weeks ago
15 weeks ago Link To Comment
Let's face reality. This loose cannon won't be stopped through
The legal system nor through congress. After the November
Congressional elections Obama will have two full years of unfettered
Rule by presidential fiat. Because America has become
A volatile racial tinderbox, as the Democratic Party has cleverly orchestrated
For political purposes, there is almost zero possibility
Of impeachment proceedings against him. He knows
There is almost nothing to stand in the way of his radical
Islamo/leftist agenda. The only possible exception is almost
Unthinkable, yet to save American democracy and the American
People from the existential dangers this reckless man has
Created, all options should be on the table, including
A temporary military one. There is a higher authority to obey
Than a commander and chief gone rogue. True patriots
Know when to 'shut up and salute' and when heroic acts of courage
And patriotism may, regrettably, be called for. This may be
Such a time.
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15 weeks ago
15 weeks ago Link To Comment
June 04 PM
The _____-in-WH has blood of too many Americans on his hands.
Not just the six who died looking for Bergdahl and the 4 KIA in Benghazi and the hidden WIA there now in "non-disclosure agreements?!". The Americans who died, were maimed, bled, sweated, fretted for themselves and their friends and *ALL* the families whose sons and daughters crunched the sand capturing the animals and attempting with criminal rules of engagement to eliminate their pestilent successors.
I am @ 40% of your book, Mister McCarthy, on my Kindle. others - good read - buy it. Sir, many of us are wearing down. Please sustain your thoughts and and writings, so that we may reach way deep and step forward when needed.
15 weeks ago
15 weeks ago Link To Comment
So it looks to me that the US is lending material support to Jihadis in Syria (didn't we do that in Libya too?), that we have just insured the return of the worst-of-the-worst to the battlefront against us (after they get a slap on the wrist from Qatar -- or was that a hero's welcome?), and that Syria has now become the preferred training ground for jihadis, flocking there from all over Europe; moreover, as demonstrated by the activities of Mehdi Nemmuche, these jihadis are tasked with returning to Europe, hardened ideologically and with military-style training gained in Syria to wreak havoc across Europe? Is this what's going on?
Is that what's happening? And our government is a participant, an enabler of this death and destruction?
See here for explication of Nemmuche's comings and goings: http://vladtepesblog.com/2014/06/04/french-tv-interview-with-author-of-book-al-qaeda-in-france/
15 weeks ago
15 weeks ago Link To Comment
All of our leaders seem to be willfully ignoring the fact that the form of islam that jihadis practice instructs them to lie to infidels (that means us, duh!). It is even a point of honor among them to say one thing to their enemies (us again, and DUH! again) and do the exact opposite. These five taliban leaders will be back in Afghanistan within the month and the folks of Qatar will say "we had no idea they planned on leaving".
15 weeks ago
15 weeks ago Link To Comment
The really scary thing is that Congress and the courts are unwilling and powerless to stop him.
15 weeks ago
15 weeks ago Link To Comment
They are not powerless. They are cowards. It would take a revolt on the part of the military
15 weeks ago
15 weeks ago Link To Comment
If the American people get angry enough Congress will have to intervene. When I say angry, I mean metaphorically pitchfork angry, ready to storm the edifice.
He is losing support by the day, even among his liberal pals.
15 weeks ago
15 weeks ago Link To Comment
Let's face it. We have a rouge president and attorney general bent on destroying our way of life. Closing down the coal industry. Taliban prisoner swap. Takeover of healthcare. Fast and Furious. Murder in Bengazi. Allowing millions of illegals to swarm through our southern boarders. Rejection of the Keystone pipeline. On and on. Yet, I have to stop and remember the American electorate voted for this guy twice and, we are now a nation run by idiots.
15 weeks ago
15 weeks ago Link To Comment
What need is there for the Legislative and Judicial branches of the Federal Government, since American is now subject to fiat law?
Citizens subject to the whims of a monarch sounds familiar.
Wasn't that the raison d'etre for the American Revolution?
15 weeks ago
15 weeks ago Link To Comment
I know I keep asking the same old question but here it is again: What would Obama do differently if he were a muslim?

15 weeks ago
15 weeks ago Link To Comment
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