A constitutional crisis of Obama’s making

As Benjamin Franklin emerged from Independence Hall at the close of the Constitutional Convention, a lady asked, “Well, Doctor, what have we got, a republic or a monarchy?” Franklin famously replied, “A republic … if you can keep it.” And, for nearly 250 years, we have kept it and many heroes have died on the battlefield to preserve it.  

But, today, every freedom-loving American, Democrat or Republican, should fear Obama’s assault on our Constitution. Obama’s presidency has been characterized by consistently governing through government bureaucracies rather than implementing the laws passed by Congress. Obama’s trend to govern outside of the people’s elected representatives may soon lead to a significant constitutional crisis. Obama has threatened an executive order granting legal status to approximately 5 million illegal immigrants in the United States.  Such an executive order would be a flagrant violation of the Constitution’s separation of powers. Article 1, Section 8, Clause 4 of the United States Constitution states, “The Congress shall have the power to … establish a uniform rule of naturalization …” The Constitution could not be more explicit that immigration lies within the purview of Congress.  

Obama’s Machiavellian action is a naked seizure of power that could be successful, based primarily on the realities of partisan politics. Despite the reality that some in America may welcome the result of Obama’s executive order, we should all fear his seizure of power. Simply put, we elected a president, not a king.  

Immigration is a difficult issue. Conservatives are right to say that we must control our borders. An open border leaves us dangerously exposed to terrorists and violent criminals. Additionally, a porous border will continue to be a magnet for those desperate to leave their home countries and will potentially overwhelm our hospitals, schools and social safety nets to the detriment of our citizens. Most important, uncontrolled massive immigration potentially harms low-income Americans looking for jobs. Finally, mass illegal immigration is patently unfair to those in other parts of the world who are trying to legally immigrate to the United States. These are legitimate concerns of the vast majority of Americans.

On the other hand, the vast majority of illegal immigrants are good, decent people who came to the United States to seek a better life for themselves and their families. How many of us can say we would not have done the same thing in similar circumstances? Additionally, our nation is a nation of immigrants, and immigrants have and will continue to contribute to the vibrancy and prosperity of our society. Critically, as a Judeo-Christian nation, we must find a humane way to treat our fellow human beings who have created lives for themselves and their families in the United States. We cannot simply label them as “criminals” and forever force them to live in the shadows of society. And, we cannot ignore the fact that many of our businesses are complicit in the mass illegal immigration by hiring illegal immigrants for extremely low wages to maximize profits.  

Both sides of this divisive issue have legitimate points. Both sides must be heard and must be willing to negotiate in good faith. Democracies are often slow to act because competing interests and viewpoints can be difficult to reconcile. We should rejoice in this inherent conflict because therein lies the strength of democracy.  

What we cannot and must not accept is an imperial president who defiles democracy and seizes power. While today some may side with the result of Obama’s proposed executive order on immigration, all should be frightened for what his seizure of power portends for our future. If a president can effectively legalize 5 million people with the stroke of a pen, in violation of the Constitution and against the will of the majority of the American people, where does it end? For those of you who philosophically agree with the result of his action, what happens when you are on the other side of an issue and an action by an imperial president?  

Obama’s action is a cold, political calculation uninhibited by any respect for our Constitution. Obama will act illegally and unilaterally because he is an ideologue who is convinced of his own wisdom and superiority. But, he is savvy. He knows that many will cheer the loss of their own freedom in support of a political victory. As for me and for all freedom-loving people, we prefer a democratic solution to a “royal” decree.   


Brian Butler is a graduate of the University of Kentucky and Notre Dame Law School.  He is a former United States Navy J.A.G., assistant commonwealth and assistant United States attorney. Currently, he is an attorney in private practice in Louisville, Kentucky.