The really huge difference is that Obama has specifically instructed agencies to not enforce laws he doesn't like, and has made up 'laws' to fill in where he felt they were needed, and he has made stump speeches and a State of the Union address where he explicitly states he will 'go around Congress.'

I don't think the issue is executive orders per se. I'd have no problem with a president's issuing a thousand executive orders to try to prevent agencies from taking unconstitutional actions to violate individual rights, or with a president's declining to enforce a law that blatantly violates individual rights. Think of the worst possible examples and consider whether you believe that a president should take no action inconsistent with a passed law, enforcing it in the name of rule of law, if the law that has been passed itself destroys the context in which rights-based rule of law is possible. Obama, of course, is no champion of individual rights.

Teresa,

I tend to agree with you.  But with an extreme case, I'm not sure.  What if there was a massive increase in far left legislators that were elected and they voted that anyone who owns more than $250,000 in property would have it taken away and they would be sent to a re-education camp to be taught to be less 'oppressive.'  Then imagine that a president with some libertarian leanings vetos the bill, they override the veto and then the president refuses to allow the law to be implimented and tells the congress that they would have to impeach him, and convict him, and then drag him out of the oval office before he'll act as a dictator.

Maybe there is a dividing line of some kind that on one side, observation of the law and maintaining our constitutional structure will always trump being more libertarian via executive orders.  But on the more extreme side of the dividing line the president's oath to uphold the constitution trumps the congress' demands.

At this point I'm not sure how to define such a line so that it could be seen in advance.

What I was saying is that the president swears to defend the constitution - that is his primary job.  If congress passed a law that couldn't be administered without a severe violation of say part of the bill of rights, then does his path lie in following the part of the constitution that respects the right of the legislature to make laws that if he can't override with a veto, and therefore must enforce?  Or does he follow the part of the constitution that is in the bill of rights and enforcing the law would violate that right?  Which is being a dictator?  Both?  In one he is violating the part of the constitution that defends the congressional powers, and the other he violates the part of the constitution that violates the individual's rights.

Fred,

I agree that the USSC is the designated arbiter - that's the way it was set up, and it's a good plan. But assuming that the supreme court won't hear it, or that the current sitting justices are so biased one way or another that they would give or have given what's clearly a bad ruling.

In that situation, what should the president do if he sees a law as unconstitutional. My gut tell me that he should fight it, within the law, as much as possible, but then implement it - if it is not a major violation of the constitution. And if it is a major violation of the constitution then he should just dig his heels in and tell congress they'll have to impeach and convict and evict him.

It is dictatorial if he breaks with the constitution's requirement that he enforce the law, but it would also be dictatorial to enforce a law that clearly violates say the 2nd amendment. Say a law is passed, his veto is overturned, and the Supremes rule that it is okay to confiscate all guns?

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This might be a issue where the checks and balances could he highlighted with an amendment that covers this situation.  It might say that a President can have a final appeal to any law he refuses to implement on constitution grounds even if the Supreme Court has not sided with him.  In that case a body of 29 States Attorneys could be formed to hear his argument and vote.  If they vote for him, the law is instantly repealed, and if they vote against him he either enforces if or resigns.  That would highlight the fact that the States were the originating partners that form the union and still have some constitutional sovereignty.

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But none of this curious hypothetical question of when a president becomes a dictator relates to what Obama has been doing, which is, as you pointed out, a blatant violation of our constitution for purely political reasons, and in other cases his actions have violated the constitution for the purpose of exercising control that the constitution wouldn't allow, and presumably because the President is on record with thinking our constitution should have positive rights (entitlements) written into it. And as a good progressive, the end justifies the means - and a controlling elite shouldn't be restricted by laws.

Steve:

The dilemma you outline is one in which a POTUS is presented with a law which 1] violates the constitution if it is enacted, and also, 2] violates the constitution if it is not enacted and 3] the USSC has either already declared as constitutional or refused to hear.    But if the USSC has ruled, then 1] doesn't apply.    So the real dilemma is, the case where the USSC has not ruled.   In that case, the legislation is clearly defective, and that POTUS does have a dilemma; government and its checks and balances is not working.    Some future USSC may rule the law constitutional or unconstitutional; in the meantime, he, as CIC and chief executive, gives it his best shot and takes the lessor of what he regards as two evils, or, using any other means to decide.  He brings his own suit to the USSC.  "Clean up this mess from Congress."   Or someone else does.   Or nobody else ever does and/or the USSC refuses to hear the case.    He's won the office, in that circumstance, he gets to choose, is how I see it, and then the result is received by each of us through that five step sieve of escalating options.

In the future, a USSC might hear and rule-- that eliminates his dilemma within our political context.  The law gets upheld or struck down.    But that doesn't change the requirement for each of us individually to respond through that five point sieve, even to that constitutionally legal outcome.

regards,

Fred

(Edited by Fred Bartlett on 2/21, 12:37pm)

Fred,

As usual we agree.  

In the end it is always a matter of what is in one's rational self-interest.  We create moral rules because it is silly, time-wasting, and error prone to attempt think out, from scratch, the moral nature of every decision we make before we make it.  The moral rules become our rules of thumb.  But when the government passes a law that violates our rights, then we need to weigh the moral value of honoring the law, the practical value of adhering to our rule of thumb in this case, and weigh the costs and benefits all over, from scratch, given this new law.  And the question we are resolving becomes (choose one): follow the law despite what it costs us, find a way around the law (violate it but without confrontation if possible), leave the jurisdiction, or go dust off the gun.

The fact that the left is always so determined to outlaw guns, despite the fact that far more people are killed by drunk drivers, and despite the fact that all the guns out there are never going to be magically collected, and despite the fact that almost all gun deaths are due to criminals and not the honest, law-abiding folks.  That makes me think that they know, subconsciously at the very least, that those guns are going to point at the elite they want to run country at that point when the elite go too far in their destruction of liberty.  I think that they know, better than anyone else, that these guns aren't about duck hunting.  And the fact that at some level they know all of this, also tells us that they already know they are going to go too far.  Kind of makes you want to dust of the gun right now.