The Post-Constitutional President


Team Obama insists that next month’s presidential election is “a choice, not a referendum.”  It sure seems to be with respect to the two candidates very different views on the Constitution.  Mitt Romney makes plain at every turn his commitment to that document, while Barack Obama’s conduct in office has marked him as the post-constitutional president.

Consider just a few examples of Mr. Obama’s systematic disregard of, contempt for and/or deviation from a national charter he swore an oath to preserve, protect and defend:

  • President Obama has simply refused to uphold federal laws with which he disagrees, including the Defense of Marriage Act and immigration statutes.
  • After confirming that, in the absence of congressional authorization, he lacked the authority to give what amounts to an amnesty to young illegal aliens, President Obama went ahead and declared it by executive fiat.
  • Despite repeated congressional objections to federal purchase of a state prison in Thomson, Illinois to which the Obama administration has sought to relocate jhadists currently held as detainees at Guantanamo Bay, Mr. Obama last week authorized its acquisition for $165 million.
  • Ever since it came to office, the Obama administration has sought to accommodate Islamist demands that freedom of expression be curbed, lest it offend Muslims and stoke violence.  For example, in 2009, it co-sponsored a UN Human Rights Council resolution along those lines.  In 2011, it launched the so-called “Istanbul Process” to find common ground with proponents of shariah blasphemy laws who seek to strip us of our First Amendment freedoms. 
  • And in September 2012, President Obama announced at the United Nations: “The future must not belong to those who slander the prophet of Islam” – a stance indistinguishable from that of the Muslim Brotherhood, the Taliban and al Qaeda.
  • A particularly ominous example of Mr. Obama’s post-constitutional presidency involves his abdication of his first duty as Commander-in-Chief: to secure the common defense.  Having successfully engineered two rounds of deep defense budget reductions totaling some $800 billion over the next ten years, the President is intent on inflicting a further, devastating half-a-trillion dollar, across-the-board cut pursuant to a process known on Capitol Hill as sequestration.  

There is no getting around it:  Cuts of this magnitude are going to result in tremendous disruptions of defense programs and attendant job losses in the associated industries.  A federal law known as the WARN Act requires companies with more than 100 employees to give them notice of potential lay-offs sixty days in advance.  With sequestration due to kick in on January 2, 2013, that means the mandatory warning of potential pink slips to come would arrive just before the November 6th election.

To avoid such a particularly untimely reminder of the president’s dismal stewardship of his economic as well as national security portfolios, in July the Obama Labor Department issued guidance to defense contractors saying that the WARN Act’s requirements would not be enforced.  The pretext given was that, since sequestration’s potential effects on particular contracts had not been specified, there was insufficient basis to know the extent of the impact on employment and, therefore, the statute would not apply.

Of course, one reason the potential effects of sequestration are not known with precision less than three months before they are statutorily required to go into effect is that the Obama administration has ordered the Pentagon not to make any plans for implementing that next round of cuts.  This directive was reaffirmed on September 27th.  

Then, Team Obama advised contractors the next day that, as The Hill reported: “They would be compensated for legal costs if layoffs occur due to contract cancellations under sequestration – but only if the contractors follow the Labor [Department] guidance.”  In other words, the administration now wants the taxpayer to pick up the tab for violations of the law by those it has induced to engage in them. 

Republican Senators John McCain, Lindsey Graham and Kelly Ayotte, respectively of Arizona, South Carolina and New Hampshire, have been among those tirelessly warning for months of the catastrophe sequestration will inflict on the U.S. military.  They issued a joint statement in response to the president’s latest post-constitutional action which said, in part, “The Obama Administration is cynically trying to skirt the WARN Act to keep the American people in the dark about this looming national security and fiscal crisis.  The president should insist that companies act in accordance with the clearly stated law and move forward with the layoff notices.”  (Detailed estimates of the magnitude of that crisis as it is likely to manifest itself in states, counties, cities and congressional districts across the country can be obtained at

In an important essay published on September 24th in the Wall Street Journal, former U.S. Attorney General Michael Mukasey called on legislators to put Mr. Obama on notice: If, as widely expected, he proceeds after the election to yield to Islamist demands that he transfer (presumably to Egypt) or release the lead conspirator in the first World Trade Center attack, Omar Abdul Rahman, it “could be considered the kind of gross betrayal of public trust that would justify removal from high office.”  The same should apply to Mr. Obama’s palpable contempt for the Constitution – something sure to be even more in evidence if he secures reelection and, as he says, “more flexibility” in a second term.


About Author

Frank J. Gaffney, Jr. is President of the Center for Security Policy (, a columnist for the Washington Times and host of the nationally syndicated program, Secure Freedom Radio, heard in Washington weeknights at 9:00 p.m. on WRC 1260 AM.

  • If Johnson could be impeached for removing the Secretary of War against the will of Congress, and Clinton could be impeached for perjury, and Nixon was forced to resign for the Watergate break-in – surely there’s enough here to impeach (and convict) our feckless President? It strikes me that some of the shenanigans of the last four years have been at least as bad as those committed by the three Presidents who have faced impeachment.

    But we won’t need to go to all the trouble if we just throw Obama out on November 6. Wake up, America!

  • CDville

    The act that most surprised me was the “recess appointment” when Congress was not in recess. Nevertheless, he knew he could get away with it, since anyone who challenges him is instantly branded a racist. On January 20 Romney will be able to reverse the executive orders, but I suspect the damage to the authority of the Constitution is irreversible. Without a legal challenge and Supreme Court decision, Obama’s extra-constitutional methods will become the way things are done. Isaiah told us there is no hope in government. Our hope is in the Lord.