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President Barack Obama believes he is above the law.
That's because he is.
This week alone, Obama announced that he would unilaterally change student loan rules, allowing borrowers to avoid paying off more of their debt; he signaled that he would continue his non-enforcement of immigration law, even as thousands of children cross the border; he defended his non-disclosure of a terrorist swap to Congress.
And, he said, more such actions were in the offing. "I will keep doing whatever I can without Congress," Obama explained.
This is not just executive overreach. In many cases, Obama's exercise of authoritarian power is criminal. His executive branch is responsible for violations of the Arms Export Control Act in shipping weapons to Syria, the Espionage Act in Libya, and IRS law with regard to the targeting of conservative groups. His executive branch is guilty of involuntary manslaughter in Benghazi and in the Fast and Furious scandal, and bribery in its allocation of waivers in Obamacare and tax dollars in its stimulus spending. His administration is guilty of obstruction of justice and witness tampering.
And yet nothing is done.
Impeachment, which has been suggested as a solution by many, is a non-starter. In the entire history of the republic, the House has impeached just 19 officials, and just eight were actually removed from office after Senate trial. Impeachment is a political solution to a criminal problem — and politicians are far too fearful of blowback to use it as a tool in upholding law.
Thanks to presidential immunity and executive control of the Justice Department, there are no consequences to executive branch lawbreaking. And when it comes to presidential lawbreaking, the sitting president could literally strangle someone to death on national television and meet with no consequences.
As Professor Akhil Reed Amar of Yale Law School has written, "a sitting President is constitutionally immune from ordinary criminal prosecution — state or federal."
So what can we do? We can tell Congress to delegate its power to check the executive branch. The Racketeer Influenced and Corrupt Organizations Act creates a broad capacity for prosecution of criminal conspiracies; it also provides for civil lawsuits against such conspiracies, turning American citizens into, as the Supreme Court puts it, "'private attorneys general' on a serious national problem for which public prosecutorial resources are deemed inadequate." Minor changes to the law should allow citizens to sue federal officials within the executive branch under RICO, unmasking criminal enterprises within the Obama administration and future administrations.
The checks and balances of the Constitution have failed. The result has been, for a century, the nearly unchecked growth of the power of the executive branch. That growth has created an executive tyranny, unanswerable and inescapable under law. Our legislators have proved themselves too cowardly to fight back using the tools at their disposal. They are obviously happy delegating their power to the executive branch. Now it's time for them to delegate their power to the people.
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