The Exaggeration of Presidential Constitutional Violations

Conservative commentators, such as Bill O’Reilly, Glenn Beck, and Sean Hannity, love to bemoan the assault President Obama is waging on the United States Constitution.  This belief, popular with fringe members of the Republican Party, has been given an image in paintings by Jon McNaughton, a Utah based artist.  One of his works, entitled “One Nation Under Socialism” depicts President Obama holding the Constitution as it is consumed by flames.  Another painting, entitled “The Forgotten Man” shows President Obama standing on the Constitution with President Madison, known as the “Father of the Constitution,” begging him to get off the document.  Additionally, a depressed man sits on a nearby bench being comforted by Republican and early presidents as Democratic presidents applaud our current president for trampling the Constitution.

            The objective of these two paintings is clear: enrage the conservative base against the Democratic Party and attempt to bait Democrats into criticizing McNaughton which can then be spun into further conservative propaganda.  The belief that President Obama has done and continues to do irreparable damage to our founding document is woefully one-sided and simply incorrect.  While it is true that some presidents have violated the Constitution (Lincoln’s suspension of habeas corpus during the Civil War, Franklin Roosevelt’s attempt to pack the Supreme Court and the internment of Japanese-Americans during World War Two, and George W. Bush’s signing off on torture come to mind), the majority of so-called “constitutional violations” by presidents, Democrat and Republican alike, are either simple policy agendas which the opposition party opposes or a violation by the Congress which the president is saddled with.

            On December 4, 2011, the Daily Caller, a conservative news website, published a list of constitutional violations conducted by President Obama written by Ilya Shapiro.  The first claim betrays the foolishness of the author.  “No list of President Obama’s constitutional violations would be complete” without listing the individual mandate, a provision in the Affordable Care Act which requires citizens to possess health insurance or pay a fine.  The foolishness of this claim comes in the reasoning for the unconstitutionality of this policy when Shapiro states that the mandate exceeds Congress’ authority.  Is the individual mandate a violation by the president or by Congress?  To give Shaprio the benefit of the doubt, it is possible that the “violation” belongs to them both due to the constitutional power of the president to propose laws to Congress.  The individual mandate, however, is not an overstep by Congress due to the Article I, Section 8 authority to impose taxes.  The fine which accompanies the lack of insurance is nothing more than a tax which one can exempt themselves from by purchasing insurance.  Not only is this common sense, but it is also the position taken by the Supreme Court, as seen in Chief Justice John Robert’s majority opinion in National Federation of Independent Business v. Sebelius, the case which upheld the Affordable Care Act.

            The next claim is rather simple and will not take much time to dismiss.  The “violation” is part of the Affordable Care Act (again, passed by Congress, thus technically making it their violation) which requires states to increase Medicaid budgets and reform the health care bureaucracy or risk losing federal funding for Medicaid.  Medicaid, which states operate and pay for along with help from the federal government, is not a constitutional program, but rather one created by President Lyndon Johnson’s Great Society.  Since it is not a constitutional entitlement and since the federal government gets to create its own budget, Congress is not compelled to pay for anything.  Thus the federal government can rightfully refuse to fund anything it wants.

            The third claim is similarly simple and incorrect.  It regards the Independent Payment Advisory Board, which the conservative propaganda machine dubbed the “Death Panel,” and the authority the board possesses.  In what is a blatant lie, Shapiro claims that any decision handed down by the board “automatically become[s] law” which, if true, would in fact be an absurd constitutional violation.  The reality is that the board can only make recommendations on ways to shave health care costs, none of which are permitted to involve rationing of care.

            Shapiro’s fourth “violation” is the auto bailout which saved Chrysler from bankruptcy.  The government can choose how to spend its money, which includes granting loans to businesses, an act which had a clear precedent before President Obama bailed out Detroit.  There had been fifteen bailouts in the forty years before Obama took office, all but one of which were approved by Republican presidents.  The fact that Shapiro does not have a problem with those bailouts clearly illustrates that this objection is nothing more than an attack on a Democratic president because he is a Democrat.

            Shapiro labels the Dodd-Frank Banking Reform Act as Obama’s fifth constitutional violation.  What should be noted as a trend is that virtually all of these supposed violations Obama has committed were in fact proposed and passed by Congress and simply signed by the president.  Regardless of this, Dodd-Frank once again is not a constitutional violation.  Shapiro bemoans the law for giving the Treasury Department a fair amount of authority to regulate the banking industry, claiming that this is unconstitutional.  It is well within Congress’ powers, however, to delegate responsibility to the various departments of the government.  Dodd-Frank is no more unconstitutional than a law granting the Joint Chiefs authority over regulating the military.

            The temporary ban on deep-sea oil drilling in the aftermath of the Deepwater Horizon/British Petroleum oil spill is pegged as the sixth violation.  The argument that this moratorium is unconstitutional is absurd.  The federal government is the official owner of the Gulf of Mexico areas where the oil rigs are positioned; the oil companies simply lease the “land” from the government.  Since the federal government is still technically the owner, it can tell companies what to do and what not to do on its own land.

            Next, Shapiro puts forth the claim that President Obama planned on forcing businesses with federal contracts to disclose independent expenditures on federal elections.  While Shapiro claims that this is an attack on the First Amendment right to free speech, a right afforded to businesses under the Citizens United decision by the Supreme Court in 2010, it is not.  The plan, which was never even put into place, would simply have required the businesses to disclose their expenditures; it would not have banned the ability of businesses to contribute to political causes.  But again, since the plan was never enacted or even officially proposed, it can hardly be considered a constitutional violation.

            Shapiro also claims that the attempt by the Internal Revenue Service to tax contributions to 501(c)(4) organizations, nonprofit advocacy groups which Stephen Colbert labeled “Spooky-PACs,” also constitutes a constitutional violation by the Obama administration.  While it is true that these organizations are tax-exempt, this status is not a God-given right.  The fact of the matter is that the IRS can choose what to tax and what not to tax.  To remove an organization from tax-exempt status all it needs to do is get support from Congress.

            The most ridiculous of all these claims is the last one I will address.  Shapiro claims that the attempt by the Food and Drug Administration to place graphic warnings on cigarette packages.  He claims that this is a violation of the First Amendment but fails to take that crucial step of explaining how the First Amendment is violated.  Assuming that he refers to the freedom of speech protection, this claim fails the lightest of scrutiny.  The right of the FDA to place warnings on products has routinely been confirmed by the courts.  If the FDA is allowed to place warnings, then it has the authority to decide what shape, size, and form these warnings come in. 

            As I previously mentioned, virtually every “constitutional violation” levied against a president of either party is in reality a violation conducted by Congress.  Even President Bush’s warrantless wiretapping, the Democratic Party’s favorite barb against him, was “authorized” by Congress through the PATRIOT Act.  The claim by politicians that the president is trampling the Constitution is often a smokescreen to distract the population from the real culprits:  Representatives and Senators of both parties.