Is Obama Thinking About A Third Or Fourth Term? Very Possibly!

Tuesday,February 11, 2014

[Editor’s Note: The following post is by TDV contributor, Wendy McElroy]

What do you call a President who can choose which laws to enforce and how, a leader who can create new laws with the stroke of a pen? A dictator. Some would say a king.

Obama has denied both claims. In 2013, he told CNN Chief White House Correspondent Jessica Yellin, “I am not a dictator, I’m the president.” By this he meant he could not bypass Congress to unilaterally impose his will. In a 2013 interview with the Hispanic network Univision, Obama explained his immigration policy with the words, “I think it’s important to remind everybody that, what I’ve said previously, I am not a king.” A president who persistently denies being a dictator or a king is worrisome. It is like a stranger who tells you, “I am not a thief.” It makes you wonder why the question arises.

It arises because Obama has both ignored laws and created them despite Congressional protest. And, in last month's State of the Union address, he declared an intention to speed up the process. Obama stated, “America does not stand still and neither will I. So wherever and whenever I can take steps without legislation...that's what I'm going to do.” Translation: he will use a myriad of executive means to assume the legislative powers of Congress. It will be rule of the executive, by the executive, for the executive.

In the past, Obama has blithely ignored the Constitution, Congress and statute law in order to impose his own widesweeping policies. In June 2012, for example, he bypassed a rebellious Congress to impose an immigration policy that won him crucial support from Hispanics for his re-election bid. The New York Times (June 16, 2012) explained the impact that executive directive had on up to 800,000 illegals, “Under the change, the Department of Homeland Security” would no longer deport those who entered the US “before age 16” who met other specified criteria. Congress had pointedly refused to enact that immigration change.

More recently, Obama has unilaterally rewritten key aspects of the Affordable Care Act (Obamacare). He has done so even though Obamacare is existing law and duly approved by Congress. He has done so even though Congress must approve all changes. And his method of altering the law has sometimes been cavalier. For example, through a Treasury Dept. blog post in July 2013, the Obama administration announced “it will provide an additional year before the ACA mandatory employer and insurer reporting requirements begin.” That's illegal on its face.

The issue is not whether established laws deserve respect or compliance; most don't. The issue is not whether the current political structure of America should be preserved; it shouldn't. What's happening is a dramatic shift in power between the three branches of American government so that one-man rule is becoming the reality. In his last term as President, Obama will try to cement the Presidency into a dictatorship under another name.

One formidable barrier against his power remains. The Constitution specifies that spending bills must originate in the House of Representatives. That's why recent warfare between the House and the President, the Republicans and Democrats has revolved around budget issues. If Obama can bypass the Constitutional requirement, then nothing obstructs his path.

Executive authority and a competing Congress

Article 1, section 7 of the Constitution states, “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

The House’s monopoly on raising revenue was designed to be a powerful brake upon the executive. The president can sign executive orders and create executive agencies (like the Department of Education) with administrative policies that regulate the minutiae of society. Without funding, however, the measures and agencies falter.

Unfortunately, there is some legal grounds upon which Obama could challenge the authority of Congress over revenue bills. Section 4 of the Fourteenth Amendment (1868) reads, “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” This Reconstruction amendment was adopted in the wake of the Civil War (1861–1865) in order to guarantee Union loans while repudiating Confederate debt. Nevertheless, the United States Supreme Court later ruled that the section’s language had broader application. How broad? Constitutional attorneys point out that the section refers to honoring current debt, not to creating new debt. But during a national emergency, when the president assumes extraordinary powers, will anyone make that distinction, or care about it?

Section 4 was undoubtedly what ex-president Clinton referred to during the 2011 debt-ceiling crisis. According to theNew York Times (July 25, 2011) Clinton had “identified a constitutional escape hatch” for Obama: the Fourteenth Amendment. If he were still president, Clinton claimed he would invoke the amendment “without hesitation” and “force the courts to stop me.” Courts are slow; an executive order goes into force almost immediately. Thus, even if the Supreme Court ruled against an executive order, political realities would favor it.

Obama's chances of grasping control are enhanced by the current Democratic strategy of weakening the Supreme Court through “popular” or “democratic” constitutionalism. An essay entitled “Popular Constitutionalism and Relaxing the Dead Hand: Can the People Be Trusted?” by law professor Todd E. Pettys offers a general sense of the approach. “Popular constitutionalists argue that the American people, not the courts, hold the ultimate authority to interpret the Constitution’s many open-ended provisions.” In other words, if Obama violates the Constitution's budgetary restrictions, he should answer to the American people – perhaps through a vote – rather than be overruled by the Supreme Court.

Can Obama's executive onslaught be stopped?

The honest answer is “no one knows.” But Obama's power is now so great that some question whether his current stint in office will be his last term. The iconoclastic financial advisor, Zero Hedge commented, “So how long until the Economist-In-Chief extends presidential term limits with executive order.” This is an improbable scenario but not impossible.

The improbability: after Franklin D. Roosevelt won a successive four terms as president, the Twenty-Second Amendment to the Constitution was passed. The relevant passage states, “No person shall be elected to the office of the President more than twice.” To seek a third term,Obama would need to repeal the Amendment or to nullify it in some manner, such as through “popular constitutionalism.”

Nevertheless, rumors of a third run are spurred on by increasing discussion of the possibility. For example, the Washington Post ran an op-ed entitled “End presidential term limits.” A House Judicial Committee hearing on Presidential Constitutional Violations was held in December 2013. Republican Congressman Trey Gowdy pointed out to the committee that Obama violated other laws and Constitutional requirements; why wouldn't he violate election laws?

A third-term run remains unlikely. But, significantly, opinion and law makers are speculating about it. It defies credibility to believe that Obama is not among them.