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Judge Nap's Latest Column: Above the Law
By: Judge Andrew NapolltanoJuly 11, 2013

Fidelity to the rule of law is the centerpiece of a free society. It means that no one is beneath the protection of the law and no one is absolved of the obligation to comply with it. The government may not make a person or a class of persons exempt from constitutional protections, as it did during slavery, nor may it make government officials exempt from complying with the law, as it does today.

Everyone who works for the government in the United States takes an oath to uphold the Constitution and the laws written pursuant to it. In our system of government, we expect that Congress will write the laws, the courts will interpret them and the president will enforce them. Indeed, the Constitution states that it is the president's affirmative duty to enforce the law. That duty is not an abstract formulation. Rather, it means the president cannot decline to enforce laws with which he disagrees or whose enforcement might cause him or his political allies to lose popularity. It also means the president cannot make up his own version of the law as a substitute for what the Constitution commands or Congress has written.

In the modern era, presidents have rejected the value of the rule of law and instead followed their own political interests. President George W. Bush, for example, while signing into law a federal statute prohibiting the government from reading your mail without a search warrant, boasted that he had no intention of enforcing that law -- and we know that he famously did not enforce it.

But no modern president has picked and chosen which laws to enforce and which to ignore and which to rewrite to the extremes of President Obama. His radical rejection of the rule of law, which presents a clear and present danger to the freedom of us all, has had fatal consequences.

The law requires that if American tax dollars are being given to the government of another country, and that government is toppled by its military -- the common phrase is a coup d'‚tat -- the flow of cash shall stop immediately, lest we support financially those who have betrayed our values.

In Egypt, the military arrested the president, suspended the Constitution and installed a puppet regime. But Obama, embarrassed at the fall of the popularly elected but religiously fanatical government he supported, refuses to consider that military takeover a coup. Instead he has called it a popular uprising supported by the military, and he has continued the flow of your dollars into the hands of a military that has been murdering scores of peaceful demonstrators daily in the streets of Cairo.

The president's signature domestic legislation -- Obamacare -- is scheduled to become effective in stages. One of its provisions, requiring employers of more than 50 persons to offer health insurance acceptable to the feds to all of their employees, becomes effective on Jan. 1, 2014. In anticipation of its becoming law, insurance carriers and employers have calculated that instead of costs going down, as the president promised, they will certainly go up, resulting in the loss of jobs. So the president, mindful of the midterm congressional elections in November 2014 and fearful that Democrats who supported this law might suffer at the polls at the hands of deceived and thus angry voters, announced on the Fourth of July weekend that he planned not to enforce that provision until Jan. 1, 2015.

When he wanted to use military force in Libya and Pakistan -- two allies -- without congressional approval, out of fear, no doubt, that Congress might turn him down, he dispatched the CIA to do his killing. Why? Because federal law requires that he report all offensive use of the military to Congress and eventually obtain its approval for continued use. Because the CIA largely operates in secrecy, the president needn't report its behavior publicly or even acknowledge that it took place.

In the same vein, he recently moved all records of the Osama bin Laden killing from the military -- which carried it out -- to the CIA. Why? Because the military is largely susceptible to the Freedom of Information Act, which commands transparency, and the CIA is largely not. He probably fears that the truthful version of bin Laden's demise will become known. If so, it would be the fourth version of those events his administration has given.

When he wanted to kill an American and his 16-year-old son in Yemen because the American, though uncharged with any crime and unasked to come home, might be difficult to arrest while advocating war in a foreign country, he wrote his own rules for governing his own killings. He did so in secret and notwithstanding clear language in the Constitution expressly prohibiting the government from taking life, liberty or property without due process of law.

And when he wanted to keep us safe from terrorists but servile to him by spying on all of us, he established an enormous network of domestic spies who have access to all of our phone calls, emails and text messages. And he did this despite unambiguous language in the Constitution requiring a search warrant based on particularized probable cause of crime about the records he wanted to seize or the venues he wanted to search.

What's going on?

What we have is a runaway government, dismissive of the Constitution it has sworn to uphold, contemptuous of the law it is required to enforce and driven by its own values of maximum control and minimum personal freedom. And we have a Congress supine enough to let this happen, as well as a judiciary so tangled in its own arcane procedures that immeasurable human freedom will be destroyed and Obama out of office before any meaningful judicial review can be had.

Is this the rule of law? What shall we do about it?

 

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