What If They Are Hiding the Truth?

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

What if President Obama secretly agreed with others in the government in 2011 to provide arms to rebels in Libya and Syria? What if the scheme called for American arms merchants to sell serious American military hardware to the government of Qatar, which would and did transfer it to rebel groups? What if the U.S. Department of State and the U.S. Department of the Treasury approved those sales?

What if the approvals were kept secret because some of those rebel groups were characterized by the same Departments of State and Treasury as terrorist organizations? What if the ultimate recipients of those arms were the militants and monsters in al-Qaida and ISIS who have slain and tortured innocents?

What if this scheme is defined in federal law as providing material assistance to terrorist organizations? What if that’s a felony? What if that’s the same felony for which the U.S Department of Justice has prosecuted dozens of persons merely for attempting? What if this scheme was not a mere attempt, but an actual arming of terrorists?

What if this scheme was approved not only by the president, but also by Secretary of State Hillary Clinton? What if the idea of doing this was hers? What if congressional leaders in both houses of Congress and from both parties signed off on this? What if the remaining members of Congress and the American people were kept in the dark about this scheme? What if those who agreed to permit this scheme knew that the arms were destined for terrorist organizations and they were flirting with a criminal conspiracy to violate federal law?

What if Clinton was asked by senators while under oath about the delivery of arms made by American manufacturers to ports in the Middle East and she denied knowing anything about it? What if she knew she had personally approved the deliveries but falsely claimed she had no knowledge?

What if this arms-to-terrorists scheme began to unravel? What if the rebels were really bad guys? What if there are many rebel/terrorist groups with varying degrees of hatred for the United States? What if some of the groups that received American arms are so hateful of the U.S. that they will bite the hands that fed them?

What if Clinton’s job was to prevent American arms from slipping into the hands of terrorists? What if she secretly did the opposite of what her job required? What if she and the president and the other conspirators viewed themselves as being above the law? What if they thought the terrorist groups they were arming would overthrow the Gadhafi government in Libya and the Assad government in Syria? What if they believed those revolutions would be greeted with cheers in the West? What if they hoped the cheers would be for them?

What if their goal of regime change succeeded in Libya, and yet the result was chaos? What if under Col. Gadhafi Libya had been a stable U.S. ally? What if today there is no central government in Libya and it is ruled by gangs and tribes and militias?

What if the American assistance to Syrian rebels became known to the Russians? What if that knowledge prompted Russian President Putin to help his ally, President Assad of Syria? What if the American and Russian introduction of heavy military hardware into the Syrian civil war has resulted in prolonged war and more deaths of innocents and destruction of property, not less?

What if one of the terrorist groups that received American arms from this scheme attacked the American consulate in Benghazi, Libya, because it wanted more arms from the U.S. and it knew arms were stored there? What if that attack killed U.S. Ambassador to Libya Chris Stevens and three of his colleagues? What if this was a nightmare scenario for the conspirators? What if the conspirators now fear that the truth of their plot will become known?

What if the tragedy at Benghazi was unwelcome but not unforeseen? What if the conspirators knew of the risks to innocent lives attendant upon breaking the law by giving arms to madmen? What if members of Congress who were kept in the dark about the arms-to-terrorists scheme were outraged over Benghazi? What if leaders of the House of Representatives, some of whom were conspirators, formed a committee to investigate how the murder of Stevens came about?

What if some members of that committee already know that Stevens and the others were murdered with U.S. weapons illegally given to U.S. enemies secretly by U.S. government officials? What if the stated purpose of the committee -- to seek the truth about Benghazi -- is not the true purpose? What if the real purpose of that committee is to suppress the truth so that the president and Clinton and the other conspirators do not get indicted? What if the truth is the last thing the conspirators want to see come out?

What do we do about lawless government by secrecy? What do we do about government officials who act as if they are above the law? What do we do if one of them lives in the White House and controls all federal prosecutions? What do we do if another of them is presently on her way there?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Restore the Fourth

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

If you plan to visit a college campus this month, don’t be surprised if you see signs and placards encouraging you to “Restore the Fourth.” Restore the Fourth is not about an athletic event or a holiday; it is about human freedom. The reference to “the Fourth” is to the Fourth Amendment, and it is badly in need of restoration.

In the dark days following 9/11, Congress enacted the Patriot Act. The Patriot Act has many flaws, including its prohibition of certain truthful public speech, but its most pernicious assault is on the constitutional right to privacy.

One of its sections permits federal agents to write their own search warrants and serve them on persons and entities who by law are the custodians of records about others, such as physicians, lawyers, bankers, telecoms, public utilities and computers servers. The same section of the act has been used perversely by the NSA and the secret FISA court to authorize the bulk collection of data.

Bulk collection of data -- the indiscriminate governmental acquisition of the contents of emails, text messages, telephone calls, bank statements and credit card bills -- is what the NSA seeks when it acquires all data in a specific area code or zip code or from a named provider, like Verizon, AT&T and Google.

What’s wrong with bulk collection? The warrant issued by the FISA court that authorizes bulk collection is known as a general warrant. A general warrant does not name a person or place, but authorizes the bearer to search wherever he wishes and seize whatever he finds. General warrants were a tool of colonial repression used by the king prior to the American Revolution. They were issued by secret courts in London. They were so loathed by the Framers that they are expressly forbidden by the Fourth Amendment.

The Fourth Amendment requires evidence -- called probable cause -- about a particular person, place or event to be presented to a judge and requires the judge to decide whether it is more likely than not that the government will find what it is looking for. The wording of the amendment could not be more precise, and in a Constitution known for vague language, this precision is instructive: All warrants must “particularly descr(ibe) the place to be searched, and the persons or things to be seized.” The Fourth Amendment protects all persons’ bodies, houses, papers and effects.

Yet the Patriot Act purports to avoid these requirements by permitting secret FISA court judges to authorize NSA agents to execute general warrants; thus, without probable cause and without describing the place to be searched or the person or thing to be seized.

The purpose of the Fourth Amendment is to prohibit government fishing expeditions, common to totalitarian countries. The theory of the Fourth Amendment is that a restrained government -- restrained by an instrument the government cannot change, like the Constitution -- is essential if people are to be free. The natural right protected by the Fourth Amendment is the right to be left alone.

Enter Restore the Fourth.

Restore the Fourth is a movement gaining steam now because the section of the Patriot Act that is so constitutionally offensive expires on May 31. President Obama wants it extended so his spies can continue their bulk collection of data. The Republican leadership in the Senate agrees with the president and accepts the myth that less freedom equals more security. The Republican leadership in the House has proposed a Band-Aid that would require the telecoms and computer service providers to sit on bulk data until the feds come calling, but to surrender it without the judicial finding of probable cause or specificity.

The Patriot Act should be repealed because it violates the Constitution and it doesn’t keep us safe. It renders us less safe and less free. The indiscriminate unconstitutional bulk collection of data is far too much raw material even for the 60,000 NSA agents and contractors to navigate. We saw that as recently as last weekend, when two jihadists known to the FBI and who had used email and cellphones attacked a free speech symposium outside of Dallas and were stopped at the last minute by courageous local police who saw their guns -- not by federal spies’ warnings.

When longtime NSA Director Gen. Keith Alexander was asked under oath how many plots the NSA has stopped in 10 years, he stated 53. The next day, he modified his testimony to three, but declined to elaborate. Edward Snowden, whose revelations about NSA spying have never been refuted, says that no plots have been stopped because the NSA looks at everyone, rather than targeting the bad guys, as the probable cause requirement -- if complied with -- would induce it to do.

Americans are largely free because of the rule of law. The rule of law means a supreme law of the land to which even the government is subject, just as are all persons. Without the rule of law, we are subject to the rule of whoever runs the government, and our rights become licenses to be granted or denied by whoever runs the government. In that world, who or what would restrain the government? An unrestrained government is what we fought the American Revolution against.

That’s why we must Restore the Fourth.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

The Tyranny of One Man's Opinion

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

Thomas Cromwell was the principal behind-the-scenes fixer for much of the reign of King Henry VIII. He engineered the interrogations, convictions and executions of many whom Henry needed out of the way, including his two predecessors as fixer and even the king's second wife, Queen Anne.

When Cromwell's son, Gregory, who became sickened as he watched his father devolving from counselor to monster, learned that an executioner for the queen had been sent for from France a week before her conviction, he asked his father what the purpose of her trial was if the king had preordained the queen's guilt and prepaid the executioner. Cromwell replied that the king needed a jury to give legitimacy to her conviction and prevent the public perception of "the tyranny of one man's opinion."

In America, we have a Constitution not only to prevent the perception but also to prevent the reality of the tyranny of one man's opinion. The Constitution’s Fifth Amendment makes clear that if the government wants life, liberty or property, it cannot take it by legislation or executive command; it can do so only by due process -- a fair jury trial and all its constitutional protections.

The constitutional insistence upon due process was the result of not only the Colonial revulsion at the behavior of Henry and his successors but also the recognition of the natural individual right to fairness from the government. If one man in the government becomes prosecutor, judge and jury, there can be no fairness, no matter who that man is or what his intentions may be. That is at least the theory underlying the requirements for due process.

President Barack Obama has rejected not only the theory but also the practice of due process by his use of drones launched by the CIA to kill Americans and others overseas. The use of the CIA to do the killing is particularly troubling and has aroused the criticism of senators as disparate in their views as Rand Paul and John McCain, both of whom have argued that the CIA's job is to steal and keep secrets and the military's job is to further national security by using force; and their roles should not be confused or conflated, because the laws governing each are different.

Theirs is not an academic argument. The president's use of the CIA is essentially unlimited as long as he receives the secret consent of a majority of the members of the House and Senate intelligence committees. The secret use of these 37 senators and representatives constituting the two committees as a Congress-within-the Congress is profoundly unconstitutional because Congress cannot delegate its war-making powers to any committee or group without effectively disenfranchising the voters whose congressional representatives are not in the group.

Moreover, the War Powers Resolution regulates the president's use of the military and essentially precludes secret wars. It requires the public consent of a majority of the full Congress for all offensive military action greater than 90 days. That, in turn, brings about transparency and requires a national political will to use military force.

President Obama has formulated rules -- agreed to by a majority of the 37, but not by a majority in Congress -- that permit him to kill Americans and others overseas when he believes they are engaging in acts that pose an imminent threat to our national security, when their arrest would be impracticable and when personally authorized by the president. This is not federal law, just rules Obama wrote for himself. Yet none of the Americans he has killed fits any of those rules.

Last week, the White House revealed that in January, the government launched its 446th drone into a foreign land, and this one killed three Americans and an Italian, none of whom had been targeted or posed a threat to national security at the time of his murder. The drone, which was dispatched by a computer in Virginia, was aimed at a house in Pakistan and was sent on its lethal way without the approval of the Pakistani government or the knowledge of President Obama.

The use of drones is not only constitutionally impermissible but also contraindicated by the rules of war. Drones pose no threat and little danger to those doing the killing. Except when the intelligence is bad -- as it was in the January case revealed last week -- deploying drones is a low-risk endeavor for the country doing so. But Obama's wars by robots produce more killing than is necessary. War should be dangerous for all sides so as to limit its lethality to only those venues that are worth the risk -- those that are vital for national security.

If war is not dangerous, it will become commonplace. By one measure -- the absence of personal involvement by decision-makers -- it has become commonplace already. A mere three years after his self-written rules for the deployment of drones were promulgated, the president has delegated the authority to order drone killings to his staff, and the members of the congressional intelligence committees have delegated their authority to consent to their staffs.

Obama apparently doesn't care about the Constitution he swore to uphold, but he should care about the deaths of innocents. Obama's drones have killed more non-targeted innocents in foreign lands than were targeted and killed in the U.S. on 9/11.

And the world is vastly less stable now than it was on 9/11. The president's flying robots of death have spawned the Islamic State group -- a monstrosity far exceeding even Henry VIII and Thomas Cromwell in barbarity.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Obama Plans to Execute Another US Citizen via Drone Strike

Isaiah Hunter*

President Obama plans to execute via a drone strike another US citizen, but this time under his revised signature killing procedures. These procedures evidently are more stringent than the original targeted killing procedures. This has angered some Republicans, who argue greater procedures will slow down the killing of alleged enemies. While this is a complicated topic, I think the Obama Administration is correct in increasing the required procedures prior to killing US citizens. In fact, the Obama Administration probably did not go far enough.

Generally, under the 5th Amendment the executive cannot execute persons (let alone citizens) absent the due process of law. Therefore, it would seem obvious that the president cannot write and execute a kill list. Yet one obvious exception to the 5th Amendment is Jus in Bello – the law of war.  During war, it would be impossible for the president to provide due process in any meaningful way to enemy soldiers. This exception must be narrowly construed and diligently enforced, less the exception swallows up the general rule.

The global war on terror is a grey place where the rule and exception come very close to meeting. Once again, no one would deny that the US President could during war order an attack that kills enemy combatants. Moreover, if that attack killed US citizens who defected to the enemy, I do not think there would be 5th Amendment arguments that would prohibit the attack. The difficulty in the war on terror is that it is very unclear whether someone has actually defected to the enemy. It isn’t always clear who the enemy is. Moreover, the war has neither defined borders nor a start/end date. It is very much not a war in the traditional sense. This should make everyone weary of giving any executive substantial latitude – the power will exist for a long time.

As such, it makes the targeted killing question very difficult to answer: does it fall under the war exception or the general 5th Amendment rule? Attorney Holder seemingly offered an in-between. He argued that a non-judicial process that was vetted by the executive was sufficient. This strikes me as the fox guarding the hen house. Yet recent alternatives do not seem particularly appealing. The FISA court was either a rubber stamp or was simply lied to by the NSA. Congress often delegates on matters of national security. How do you solve this issue?

Perhaps an improved FISA court? One of the large problems with the FISA court was its ex parte nature. Ideally, we could construct a targeted killing court where standing rules could be relaxed permitting non-governmental organizations, such as the ACLU, to argue cases on behalf of the alleged enemy. This court could not be an Article III Court. The second problem with the FISA court was the secrecy behind the court. Because its opinions weren’t made public, the legal conclusions were not scrutinized. Now, given the nature of targeted killings there would need to be some secrecy. But there could be a standard that all opinions must be published within 9 months. This would open the killings court to criticism, which could help avert some of the problems that plagued the FISA court and would make clear whether the court is functioning properly.

In the end, Obama was right to want more procedure. However, he probably needs to include more non-executive procedure and non-government stakeholders in the process. 

*Isaiah Hunter is a J.D. Candidate at New York University School of Law, class of 2014, and is Senior Articles Editor of the Journal of Law & Liberty. 

An Unconscionable Silence

Judge Andrew P. Napolitano*

Judge Nap pic.png

The political philosopher Edmund Burke once remarked that all that is necessary for the triumph of evil is for good folks to do nothing. A glaring example of the impending triumph of a constitutional evil that could be stopped by folks who have been largely silent is the tyranny coming from the White House. And the folks who can stop this and are doing nothing about it are our elected representatives in Congress.

The Constitution is the supreme law of the land. It established the three branches of government, and it delegated “all legislative powers” to Congress. American law rarely uses the word “all.” Yet the Framers chose that word precisely to confine law writing to Congress and to prevent a president from altering federal law by the selective manner of his enforcement of it and thereby effectively rewriting it.

The same Framers sought to guard against the same evils by compelling the president to swear at the commencement of his terms in office that he will “faithfully” enforce the laws. The use of the word “faithfully,” like the use of the word “all,” is intended to assure voters that they can count on a president who will do the job they hired him to do by enforcing federal laws, not evading them, and by enforcing them as Congress has written them, not as the president might wish them to be.

To be fair, many presidents, from the sainted Thomas Jefferson to the tyrannical FDR, put their own spin on federal law. Jefferson pardoned all those convicted under the Alien and Sedition Acts because he hated a statute that punished free speech and he boasted that he would not enforce that part of the acts (they expired under his watch). And FDR when barely two weeks in office issued an executive order criminalizing the possession of gold because he foolishly thought it would stabilize the banks, until an adviser reminded him that only Congress can write criminal laws (which he then persuaded Congress to do). Yet in President Obama we have a president whose personal interferences in the enforcement of federal laws reveal his view that he can rewrite them and even nullify them.

Presidential law writing violates the presidential oath of office, steals power from Congress, disrespects an equal branch of the government and, when unchecked, accumulates such power in the executive branch that it effectively transforms the president into a menacing tyrant who rejects his constitutional obligations and limitations.

Obama bombed Libya without a declaration of war from Congress. This arguably brought down the Gadhafi government, which led to the current state of lawlessness there, which produced the environment in which our ambassador was murdered in Benghazi in 2012 and established a dangerous precedent because Congress remained officially silent.

He has told the 11 million illegal immigrants who are here and subject to deportation that if they comply with a new set of rules they will not be deported. The constitutional problem is that the president wrote those rules. Only Congress can craft such rules, and by the president's doing so, he has schooled immigrants in how to avoid compliance with federal law.

The president has used drones to kill Americans, but claims he has done so lawfully because he complied with secret rules that he crafted. Under the Constitution, if the president wants someone dead, he must afford the person due process or ask Congress to declare war on the country housing the person. No worries, he says -- he has followed the secret rules that he wrote to govern himself when deciding whom to kill.

The president’s agents now acknowledge that they spy on all of us all the time, including members of the judiciary and Congress. This, too, was done pursuant to a secret presidential directive, secretly approved by judges acting as clerks and not under the Constitution, and by a dozen members of Congress sworn to secrecy. No law authorized this, and the president won’t discuss it meaningfully, except to condemn its revelation.

And in a series of salvos that hit home, the president has modified the Affordable Care Act (Obamacare) 29 times, by changing its various dates of effectiveness for some but not for others, by changing the meanings of terms for some but not for others, and even by diluting the signature obligation we all have to obtain the platinum insurance policies it commands for some and not for others. He has done all of this on his own, with no input from Congress. He has even threatened to veto any congressional effort to enact into law the very changes he alone has made.

His latest assault on the Constitution consists of a plan by the Department of Homeland Security, revealed earlier this week, effectively to follow us as we drive on public roads by photographing the license plate of all motor vehicles. This, too, was formulated without congressional approval or constitutional authority.

And while all of this is going on, Congress largely sits as a potted plant. In the Senate, Sens. Rand Paul, Ted Cruz and Mike Lee have complained long and loud, but Senate Majority Leader Harry Reid will not permit legislation to address presidential lawlessness to reach the Senate floor. A few dozen Republicans in the House have complained, but Speaker John Boehner will not permit the House to address corrective legislation. Institutionally and officially, Congress is sleeping.

Can you imagine how a Democratic Congress would have reacted if Ronald Reagan had instructed the IRS to cease collecting capital gains taxes so as to spur economic activity; or how a Republican Congress would have reacted if Bill Clinton had instructed the IRS to add a 1-percent rate increase to the tax bills of billionaires so as to close a budget gap?

These are dangerous times because this is a lawless presidency and a pliant Congress. The president's willingness to violate the Constitution publicly calls into question his fitness for office. And that deafening silence from Capitol Hill manifests a spineless refusal to preserve constitutional government.

The whole purpose of dividing and separating governmental powers is the preservation of personal liberty by preventing the accumulation of too much power in one branch or, heaven forbid, in one person. Whoever permits this to take place lacks fidelity to the Constitution, is unworthy of holding governmental power in a free society and should be removed from office.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is “Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom.”

Executive Order Tyranny

Judge Andrew P. Napolitano*

Can the president legally bypass Congress and rule the government by decree?

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The answer to the question above is: No. But you wouldn’t know that by listening to President Obama. In the past three weeks, the president has made it clear how he plans to run the executive branch of the federal government in the next three years: with a pen and a phone.

In a menacing statement at a cabinet meeting last month, as well as during his recent State of the Union address and in a pre-Superbowl interview with my Fox News colleague Bill O’Reilly, the president has referred to his pen and his phone as a way of suggesting that he will use his power to issue executive orders, promulgate regulations and use his influence with his appointees in the government’s administrative agencies to continue the march to transform fundamentally the relationship of the federal government and individuals to his egalitarian vision when he is unable to accomplish that with legislation from Congress.

He has carried out that threat already. In June 2012, facing a presidential election campaign that he feared he might lose and wishing to keep socially conservative Hispanics from voting for Mitt Romney, the president directed the Department of Health and Human Services (HHS) -- the same folks who failed miserably at rolling out Obamacare -- to establish standards of behavior for millions of illegal immigrants, which, if followed to the government’s satisfaction, would get them off of government deportation lists.

To be sure, deportation can be ruinous, particularly to a family with children who were brought here as infants and have become fully Americanized. But the conditions for deportation, and for avoiding deportation, can only be established by Congress, not by the president or his appointees. When he lays down a list of conditions that permit persons in America to avoid complying with federal law, he is not enforcing the law; he is rewriting it. Only Congress can lawfully establish the circumstances under which those who are candidates for deportation may legally avoid it.

As well, when the president creates the conditions for avoiding compliance with federal law, he can hardly be said to be enforcing it. Yet, enforcing federal law is the heart of the president’s job. The Framers were so concerned with the potential of presidents to decline to enforce laws with which they disagreed that they inserted the word “faithfully” in the presidential oath when describing his enforcement obligations, and then they inserted the oath itself into the Constitution. The inescapable conclusion from this is that the Framers intended American presidents to enforce all of the laws that Congress has written, even those they dislike, even those they condemn, even those that may frustrate their friends, even those that may harm their political interests.

On the other hand, American presidents have some discretion when it comes to enforcing laws and may set priorities that are not inconsistent with the laws themselves. Obama, like all of his predecessors, has issued dozens of executive orders and signed off on thousands of regulations that have been lawful and helpful. That’s because, as president, he is the chief executive officer of the executive branch of the federal government and is largely responsible for the professional behavior of the three million persons who work under him as they follow his lead in enforcing federal law.

Thus, executive orders that complement, supplement and further the laws that Congress has enacted, orders that guide officials in the executive branch as to the president’s wishes, priorities and goals, orders that clarify but do not contradict federal laws, can actually be helpful -- and such orders are invariably lawful and constitutional.

But Obama seems to have had different kinds of orders in mind when he spoke of his pen and his phone -- ones much more akin to the HHS regulations on avoiding deportation -- and he has made no effort to hide his intentions. Two months ago, as the effective date of Obamacare was about to set in and after weeks of denying the obvious, the president acknowledged that the rollout of Obamacare was a disaster and that the cancellation of 6.2 million soon-to-be substandard health insurance policies was profoundly contrary to his assurances that that would never happen and was acutely harmful to those who lost their coverage.

To counter the effects of the rollout and the cancellations, the president told insurance companies to reinstate the substandard insurance policies for a year until the rollout could be corrected. Thus, on his own, he attempted to change the effective date of the onset of Obamacare from Jan. 1, 2014, which is the date in the law after which the substandard policies are unlawful, to Jan. 1, 2015, which is the date he now prefers.

The president has reminded us countless times that he taught constitutional law at the University of Chicago Law School and therefore understands the Constitution. He doesn’t act like he understands it. He surely knows that only Congress can change the effective date of a law, and that he is utterly without power to do so, no matter his purpose.

He revealed the corruptibility of power when three libertarian Republicans in Congress came to his assistance and he rebuffed them. Shortly after the president told insurance carriers to disregard the onset date of Obamacare, Sens. Rand Paul, R-Ky., Ted Cruz, R-Texas, and Mike Lee, R-Utah, offered legislation in Congress to delay the onset of Obamacare lawfully for one year and thus lawfully permit the return of the 6.2 million canceled policies for one year -- and Obama threatened to (SET ITAL) veto (END ITAL) that legislation should Congress pass it.

The same president who claims the unlawful power to rewrite federal law on his own would use his veto power to prevent Congress from doing so lawfully. His preferences surely constitute no less than a perversion of the roles assigned to the branches of government by the Constitution.

How dangerous is a president who wants to rule by pen and phone? Where will he strike next? How will this end? Will this deliver us to tyranny?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is "Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom."

Consider This a Warning: Congress Abdicates to the President

Thomas Warns*

The United States government is beset by a crisis in leadership. The simplistic answer often volunteered in the media is that hyper-partisan behavior in Congress (which is often blamed on Republicans) has prevented the federal government from getting anything done. While partisan behavior has always been a gridlock-inducing agent, a far more serious set of intertwined problems are present that will have far worse long term consequences: the abdication of legislative power by Congress and subsequent assumption of increased executive power by the President.

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This trend is not entirely unique to our current government; the reach of the federal government has been expanding since the beginning of the Progressive Era, through the New Deal, and has only continued into the present day. But the abdication of power by Congress seems far less common (it goes against human nature to surrender your power), and has been on display recently with disastrous results. The Wall Street Journal recently wrote about the latest rewrite of the Affordable Care Act perpetrated by the executive branch:

It seems Nancy Pelosi was wrong when she said "we have to pass" ObamaCare to "find out what's in it." No one may ever know because the White House keeps treating the Affordable Care Act's text as a mere suggestion subject to day-to-day revision. Its latest political retrofit is the most brazen: President Obama is partly suspending the individual mandate.

The White House argued at the Supreme Court that the insurance-purchase mandate was not only constitutional but essential to the law's success, while refusing Republican demands to delay or repeal it. But late on Thursday, with only four days to go before the December enrollment deadline, the Health and Human Services Department decreed that millions of Americans are suddenly exempt.

The White House’s neutering of the individual mandate is ironic considering the hysterical cry that emanated from the left-wing media following Republican attempts to change or repeal the law in September and October. Perhaps the most memorable quote was from comedian Jon Stewart, who shrieked “It’s a f***ing law!” while eviscerating the Republicans who opposed it. Of course, Jon Stewart ignores the fact that bad and/or morally wrong laws can be passed, but if his argument holds any weight in regards to Congressional Republicans, it should be even more potent when used against President Obama, who has already repealed or amended numerous sections of his signature healthcare law.

The executive branch has always enjoyed discretion in the enforcement of laws, but the changes unilaterally announced by the Obama Administration – the suspension of the individual and employer mandates, the deadline delays, the protections for Congressional staffers, and the one year extension for “grandfathered” plans – are far beyond an exercise of discretion; President Obama has become a one man legislature. Instead of going through the proper constitutional channels for making laws, he is announcing whatever changes he deems necessary; he has replaced open public debate and voting over policy decisions in Congress with press conferences announcing the changes he drafted behind closed doors. The President’s exercise of the legislative power vested to him nowhere in the Constitution was also evidenced in 2012 when he signed an executive order which basically made parts of the DREAM Act a law, despite the fact that Congress did not pass it.

Equally implicit in this are the members of Congress who allow the President to get away with this. The political motivations for their behavior are clear. Congressional Republicans are content to trumpet the failures of Obamacare and watch as the President continues to compound mistake after mistake with his executive “fixes.” They would like to pass legislation repealing or replacing huge chunks of the law, but can’t get by Congressional Democrats. Many Democrats meanwhile are cooling to Obamacare publicly with the 2014 elections approaching, but must also walk a tightrope which appeases the liberals who still support it while distancing themselves from it as many moderates and millennials turn against it. If President Obama wants to take responsibility for both the failures of Obamacare as well as the feeble attempts to fix it, most Democrats don’t mind.

In the long term however, neither party in Congress is doing themselves or the country a favor by refusing to defend their exclusive legislative powers. Voters have an opportunity to check the President’s power once every four years, but Congress is most capable of defending its authority under Article I of the Constitution from Presidential encroachment. In their wisdom the Framers of the Constitution established a limited government with separated powers and checks and balances; if one branch surrenders its powers to another branch, the balance is upset, powers are no longer separated, and our Republic will look less democratic and more autocratic. If you thought modern day Presidential elections were a big deal, imagine the money and attention they will command when they are for the position of elected king. And imagine what havoc one man could wreak on our precious freedoms with all that power. The NSA could end up being remembered as a pleasant dream compared to the nightmarish developments that would follow. 

*Thomas Warns is a J.D. Candidate, class of 2015, at NYU School of law, Staff Editor on the NYU Journal of Law & Liberty , and author of the weekly column "Consider This a Warning."

The Shutdown and the Rollout

Judge Andrew P. Napolitano*

Here is a quick pop quiz. Which presented more harm to human life and personal freedom: the four-week partial shutdown of the federal government last month or the rollout of Obamacare this month?

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Obamacare is the greatest single expansion of federal regulatory authority in American history. In one stroke, it puts 16 percent of American economic activity -- virtually all of health care and health insurance -- under the thumb of federal bureaucrats. It dictates the minimum insurance coverage that everyone in the United States must have.

It punishes severely, without a hearing, anyone who deviates below the prescribed minimum. It forces nearly all Americans to acquire coverage in a one-size-fits-all policy, including coverage for events that cannot occur.

Obamacare was passed by both houses of Congress with support from Democrats only, using parliamentary tricks, rather than straight up or down votes. And all the Democrats voted for it after President Obama promised them and the American people ad nauseam that if they like their current doctor and if they like their current health insurance, they would be able to keep them under Obamacare.

The law was found constitutional by the Supreme Court only after the chief justice -- who acknowledged in his opinion in the case that Congress lacks the authority to compel people to engage in interstate commerce by forcing them to purchase a good they don’t want -- changed his mind on the ultimate outcome of the challenge. In order to save the law from imminent constitutional extinction, he created a novel legal theory, and he persuaded the four progressives on the court to join him.

They ruled that the punishment for the failure to obtain the level of health care coverage that the law requires is actually a tax. Then the court ruled that because Congress can constitutionally tax any event, it can tax nonevents (like the failure to purchase health insurance), and so the entire scheme is constitutional because it is really just a tax law.

The Supreme Court, lawyers sometimes say, is infallible because it is final; it is not final because it is infallible. I am a student of the court, and I revere it. It can change the laws of the land, but it can’t change the laws of economics. And so, when Obamacare ordered all insurance carriers in the land to cease offering health care plans that provide insurance coverage below the federally mandated minimum, they naturally began to cancel those plans. And when the new health care exchanges that Obamacare established failed to find coverage for those formerly insured by the substandard plans, those who had these plans and liked them suddenly were told that on Jan. 1, 2014, when Obamacare becomes effective, they will have no health insurance. The old insurance coverage will be illegal, and there is no new coverage for them.

Why were these substandard plans canceled when the president repeatedly promised that they could be kept? Didn’t the president know that he was not being truthful when he signed a bill into law that mandated minimum coverage, yet promised that plans that failed to meet that minimum coverage could survive the law? How is it that emails from the West Wing to the White House and legal briefs filed by the Department of Justice defending Obamacare in various federal courts acknowledged that millions would lose the doctors and the coverage that they liked?

One of the reasons many Americans had their policies canceled this month is the failure of those policies to conform to the new federal minimum requirements. At the heart and soul of Obamacare is the power of bureaucrats to tell everyone what coverage to have. At the core of Obamacare is the removal of individual choice from the decision to purchase health care coverage. The goal of Obamacare is high-end coverage for everyone -- brought about by Soviet-style central planning, not in response to free market forces.

From the perspective of the central planners who concocted Obamacare, minimum insurance coverage is the sine qua non of the statute. They want you to pay for coverage you will not need or ever use, so that the insurance carriers will have extra cash on hand to fund coverage for those who cannot afford high-end policies. This is where the laws of economics enter. By forcing all carriers to offer only high-end policies, the statute forced the carriers to raise their rates. By raising rates, the substandard policies -- with their lower rates -- could no longer be offered. If the government forced everyone to buy a Mercedes, when most are perfectly happy with an Acura, soon the Acuras would disappear from the market and most of us would be walking to work.

Now back to our pop quiz. When Congress was unable to agree on a budget for this present fiscal year because tea party Republicans saw this mess coming and wanted to dull its sting and congressional Democrats refused to negotiate with them, the federal government partially shut down. The Democrats and the mainstream media went wild. They claimed the government would default on its obligations and millions would suffer without the conveniences normally offered by the federal government. Yet, the only inconvenience we really heard about was the inability of a few hundred folks to visit federal parks and monuments. All federal services -- defense, the courts, the airports, the TSA (ugh), customs, and meat inspectors -- continued to operate as before the shutdown.

Yet, when Obamacare was rolled out earlier this month, more than 5,500,000 innocent Americans lost their health insurance, and the president knew of this in advance and lied about it repeatedly, and caused it with the one-size-fits-all mentality of his signature piece of legislation. Last week he caved and said that folks who have the old substandard policies could keep them for another year. This was too little and too late. He can no more change federal law than he can change the laws of economics. And he knows that.

In modern times, we have endured great lies told in the White House. One great lie was about a third-rate burglary, and it ended in a presidential resignation. Another great lie was about a private sexual affair, and it ended in a presidential impeachment. The present great lies are about the health and freedom of 5,500,000 Americans. How will this mess end?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is "Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom."

Obamacare's Death Spiral

Richard Epstein

It has been a tumultuous two weeks since I last wrote about Obamacare’s moral blindness. The President’s dismal performance since that date has only confirmed my initial impression. He has refused to take full responsibility for the key policies embedded in that legislation. He has also endorsed naïve short-term fixes that do nothing to correct the fundamental design flaws of the Affordable Care Act.

Those two errors will give way to two larger public debates, one constitutional and one social. First, should the President’s new proposals be subject to attacks under the oft-discredited doctrine of substantive due process? Second, will the failures of Obamacare require a massive leap to a single-payer system to avert a return to some status quo ante that is morally and socially intolerable? It’s clear that we need to kill Obamacare and avoid a single-payer system at all costs.

The President’s Listless Apology

The President’s November 14 press conference reveals that he is unable to come to grips with the fatal flaws of his healthcare program. He claims that “in the first month, nearly a million people successfully completed an application for themselves or their families.” Deconstructed, what that really means is a paltry 27,000 people have been able to get coverage on the federal exchanges and some 79,000 others through the state exchanges. The million-person figure includes the 975,000 people deemed “determined eligible” for coverage that they have not purchased but, he assumes, they soon will.

The President thinks this shows the pent-up demand for his program. But he hasn’t addressed the composition of the applicant pool, which clearly attracts individuals with known healthcare conditions who will receive extensive public subsidies to join the ranks of the insured. There is no way that the government exchanges can remain viable without attracting large numbers of healthy young persons, all of whom are well-advised to stay away in droves, until they become sick and can sign up with the plan of their choice, no questions asked. Obamacare can only remain solvent with an enormous public subsidy. But the President compares apples to oranges when he disparages the private plans he considers substandard while he praises the efficiency of the public plan, even though it will require public subsidies. To him, taxpayer costs don’t matter.

The President fared no better when he claimed he misspoke in saying, repeatedly, that “if you like your current healthcare plan, you can keep it.” His tortured explanation had two parts. First, he did not focus enough on the individual market; second, the grandfather protection built into the ACA turned out to be “insufficient.” One key difficulty with the individual plan is that its ten categories of Essential Health Benefits are not met by the policies offered in the individual healthcare market. But as the HealthCare.gov website makes clear, “The Affordable Care Act ensures health plans offered in the individual and small group markets, both inside and outside of the Health Insurance Marketplace, offer a comprehensive package of items and services, known as essential health benefits.” The small group market covers firms with under 50 or 100 workers depending on the state. But the President never once discusses how Obamacare undermines both markets. Millions now find themselves in a similar bind with group plans.

The President is also flatly wrong to assume that the defects in plan structure are confined to the individual market. Nor can he claim that the grandfather provision just turned out to be “insufficient.” They were that way by design. From start to finish, the entire exception was a sham. The President has no patience for the “substandard” policies rolled out by the voluntary market, which may lose, or in many cases have lost, their grandfathered status the moment they introduced any material change in their coverage formulas or rate, which they routinely do. In addition, “most PPACA requirements apply to grandfathered plans,” including limitations on waiting periods and essential healthcare benefits, which lie at the root of the problem. The tragedy remains that it is far easier to force people out of healthcare plans that they want than it is to enroll them in healthcare plans that they don’t.

Possible Legislative Fixes

Public outrage and Democratic uneasiness has forced the President to back down from his hard-line position that would force millions of individuals with canceled polices to seek coverage on the dysfunctional government website. But once again, the President’s unyielding opposition to substandard coverage has made it impossible for him to beat a graceful retreat from his flawed program. The House just passed (with 39 Democratic votes) a Republican legislative plan from Michigan Congressman Fred Upton that would allow all insurers one more year to offer policies identical to those now in effect, without running afoul of the ACA.

The logistical difficulties that stand in the path of the implementation of this simple fix are serious. It’s not easy to close the floodgates after the water has raced downstream. The situation is made still worse because the President has vowed to veto this bill on the basis that, gasp, it lets insurance companies sell their “substandard” policies to new customers, who in his view should have their options limited solely to products offered for sale on the dysfunctional exchanges.

The President’s position raises yet again the thorny legal question of whether any president can suspend the operation of a law that he is supposed to execute. His legal position is ever so tenuous, because his fix doesn’t just suspend the law. It also requires insurers to inform consumers “‘what protections these renewed plans don’t include’ and alert customers to potentially better and more affordable insurance in the new federal and state marketplaces.” A major new disclosure program will need to be built from scratch over the Christmas holidays, on top of a reinstatement process that has to overcome huge hurdles within individual companies who have to reprice their revised policies before gaining regulatory approval on a state-by-state basis. No wonder their executives are up in arms.

Constitutional Complications

The President’s adamant position in the face of an industry-wide insurance meltdown ought to force a serious reconsideration of the constitutional issues at play over Obamacare. As everyone recalls, the constitutional challenges raised in the Supreme Court case over Obamacare, National Federation of Independent Business v. Sebelius,were over issues of Congressional power, not of individual rights. Chief Justice Roberts walked an implausible line when he held that Congress did not have the power to enact the legislation under its commerce power, but could do so under its power to tax and spend for the general welfare of the United States. From the outset, no one took seriously the view that the individual mandate posed any threat to the individual liberty protected under the Due Process Clause of the Fifth Amendment. Our New Deal legacy has left economic liberties to the tender mercies of the national and state governments. The individuals who are bound by minimum wage and mandatory collective bargaining laws have grounds to attack a statute that proclaims it protects patients and supplies them with affordable health care.

One real price of the first generation challenges under the tax and commerce powers is that they focused exclusively on a small slice of the overall legislation, thereby ignoring its most coercive and corrosive effects. But the extraordinary claims for government domination over individual rights comes front and center when the President announces that he will protect the fundamental right to healthcare by barring ordinary folks from acquiring coverage in the voluntary market, in order to force them to seek coverage they don’t want—like treating maternity care for men as an essential minimum benefit—in a nonfunctional government market that serves none of their personal needs.

The Obamacare fiasco now flunks Justice Holmes’ extreme rational basis test in the 1905 decision of Lochner v. New York: “I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.”

In the light of day, Obamacare is that bad, even if the minimum wage law is not. Even the most ardent defender of government power must concede that it is sickening when a president tells people without healthcare insurance that they must navigate his government websites or go without. If “the right to healthcare” is fundamental, Obamacare violates it. Delay here is no option. If left in place, every single structural problem that besets Obamacare today will continue to wreck innocent lives a year from now. Striking it down is an act of mercy for the American people.

Single Payer: From the Frying Pan into the Fire

Ironically, the incorrigible supporters of Obamacare have learned the wrong lesson from this debacle. Both Harry Reid and Nancy Pelosi run up the progressive flag and fault Obamacare for not going far enough in its refusal to adopt a “Single-Payer” healthcare system that would get rid of all those pesky remnants of individual choice that are now sinking Obamacare. But this proposal is sheer delusion. No sane person who has watched the government bollix its effort to implement Obamacare could tolerate the prospect of the government displacing the existing system of private healthcare insurance subject to state regulation.

What would that solve? It would not fix the expanded website that would function as the only portal into the healthcare system. It would not trim the outsized package of essential minimum benefits that have now turned the system upside down. It would not eliminate the immense network of cross-subsidies that has driven private plans to insolvency. And most certainly—with both Medicare and Medicaid in place—it could never implement the Canadian system in which national government makes block grants to the provinces who then have to allocate those dollars to various medical services consistent with budget caps on federal support.

Politically, it seems clear that the American public will not tolerate yet another round of healthcare reforms that cannot shoot straight. The real question is whether the Democrats in Congress will come to their senses and realize that Obamacare is DOA. It is possible to think of all sorts of mid-level fixes that might moderate the damages, but none has a prayer of success so long as this president remains in office. Deregulation and tax cuts are dirty words to Obama, but they are the only source of relief to a nation. The ACA has already done enough harm. The time to start over is now. 

Surprise! Enrollments Through HealthCare.gov Fall Drastically Below Obama Adminstration's Expectations

Yesterday, The Wall Street Journal  reported that since its launch on October 1, fewer than 50,000 people have enrolled in private health insurance plans through healthcare.gov. The WSJ noted:

The figure is a fraction of the Obama administration's target of 500,000 enrollees for October. The early tally for the HealthCare.gov site, which launched Oct. 1, worries health insurers that are counting on higher enrollment to make their plans profitable.
Technology problems and design flaws have blocked many users from completing insurance applications or even creating accounts to use the site, which serves consumers in the 36 states where the federal government oversees the new health-insurance exchanges…
The administration had estimated that nearly 500,000 people would enroll in October, according to internal memos cited last week by Rep. Dave Camp (R., Mich.). An estimated seven million people nationwide were expected to gain private coverage by the end of March, when the open-enrollment period is set to end.
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Additionally, according to the WSJ ,   approximately 49,000 people have enrolled in private health insurance plans in states running their own exchanges.

The Obama Administration has not confirmed these figures and has not decided whether it will release the demographic data of healthcare.gov enrollees. However, if the Obama Administration does not release such demographic data, the silence will signal that young, healthy Americans (on whose participation the program depends) are not enrolling in private insurance plans.