Must the President defend the laws passed by Congress?

A friend of mine asked me to weigh in on this question. "Can a President refuse to enforce a law? If not, what recourse does...who...have? Doesn't that give him de facto line item veto?"

So, here is an attempt at a well though out response. This obviously came up because of Obama's recent refusal to defend the Defense of Marriage Act (DOMA), but he wanted a theoretical answer, not a diatribe for or against Obama. So, here goes.

First of all, the constitution vests the executive power in the President but does not clearly define that beyond some specific powers listed later. Often, those powers are used to determine the constitutionality of executive action, but do not always provide clear direction. However, also in article 2 is the oath of office which states: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." It can be interpreted that protecting and defending the Constitution includes defending and upholding the laws passed by Congress. However, as with most things in our government, it isn't that simple.

This article from the Harvard Journal of Law and Public Policy, presents an interesting view of executive power as defined by Justice Jackson. In the interest of full disclosure, Jackson is one of my least favorite Supreme Court justices because he expanded federal power at the expense of the constitution on many occasions in my opinion, but this argument is quite good for this situation.

The argument was made in the Steel Seizure case and basically goes like this: according to Jackson, there are three levels of executive power, the "maximum", the "zone of twilight", and the "lowest ebb". These are defined by Jackson this way: the President's power is at its maximum when he is exacting power that Congress has granted, the zone of twilight is when the President is doing something that he has not been specifically granted to do, but that he also receives no opposition from Congress on and finally his power is at the lowest ebb when he is acting in a way contrary to laws passed by Congress. Jackson doesn't argue the President doesn't have power here, just that it is tenuous. I would argue the President has no power here, but I tend to disagree with Jackson.

Now we come back to article 2. The oath of office clearly requires any President to uphold the constitution. Therefore, if Congress passes legislation that the President believes to be unconstitutional, it is his duty not to enforce it. This can obviously change with each successive President as their opinions on what is and what is not constitutional will change. So, in the case of the DOMA, Clinton and Bush obviously had no problem with it, defended it in the courts and directed the Justice Department, an arm of the Executive Branch (the President) to uphold and enforce it. However, Obama's announcement makes it clear he finds it unconstitutional and therefore he won't enforce it. If someone else is elected in 2012, they can choose to enforce and defend it once again, so your remedy is through the ballot box, but Congress can't force the President to enforce an unconstitutional law. This is actually the essence of separation of powers and deserves a seriuos discussion, which it won't get because of the law in question.

Now, one final point in regards to DOMA. Marriage laws have always been established by and through the states and DOMA was designed to allow the states to act as they pleased in regards to marriage rather than having to recognize a marriage their laws considered invalid, so the constitutionality of this law rests on the Constitution again. Does the full faith and credit requirement of the constitution make this law unconstitutional and therefore require states to act in ways contrary to their laws? That is the real question here and it is the as yet undecided constitutional issue. The Justice Department had been maintaining it was constitutional but now they will not defend this in the courts. However, the states can still sue or nullify as possible remedies assuming we all still want federalism. In the absence of federalism, we have no further recourse beyond the ballot box.

Funny Florida Laws

So, as with anywhere, there are a lot of laws in Florida that don’t seem to make any sense. Both local laws and state laws that just make you go hmm… So, for your entertainment, here are some of those and my immediate impression of them. Do remember that it is likely that many of these would not be illegal if someone hadn’t done it. The source for these laws is http://www.stupidlaws.com/ so I do not speak to the veracity of these laws, but only my impression of them on the assumption they are real.

State laws

1. Unmarried women are prohibited from parachuting on Sunday under the penalty of arrest, fine, and/or jailing. Don’t ask me why this would be true. Apparently, married women can parachute, just not unmarried ones. What gives?!
2. Doors of all public buildings must open outwards. I’m guessing sliding doors and revolving doors must not be defined as “doors” in this law?
3. Having sexual relations with a porcupine is illegal. I have to admit I agree with this law. Besides, wouldn’t it hurt?
4. If an elephant is left tied to a parking meter, the parking fee has to be paid just as it would for a vehicle. So, who left their elephant tied to a parking meter? Because I’m sure this came about because somebody did it and contested the ticket in court since they weren’t operating a motor vehicle.
5. It is against the law to dream about another man’s wife or cow. First of all, how do they enforce this law and second of all, what is he doing dreaming about the cow?
6. It is against the law to put livestock on a school bus. I can’t even imagine how this came about.
7. It is illegal for men over 60 to wear yellow ties while singing the national anthem. What, are we afraid of the old man gangs? Who knows.
8. It is illegal to block any traveled wagon road. I think it is about time to challenge this and go out and place blockades on all the wagon roads. Oh yeah…there aren’t any.
9. It is illegal to sing in a public place while attired in a bathing suit. I’m guessing this has something to do with drunk college students and spring break.
10. Men may not be seen publicly in any kind of strapless gown. So, a guy can wear a dress, just not a strapless one? What? Too much chest hair?
11. The penalty for a horse theft is death by hanging. I guess Florida never quite got out of the old west days? So, we can steal a car and get jail time, but don’t you dare steal a horse.
12. Rats are forbidden from leaving the ships docked in Tamp Bay. I just want to know…what do they do to the rats that break this law and how do they even know if “this” rat came from a ship?
13. The state constitution allows for freedom of speech, a trial by jury, and pregnant pigs not to be confined in cages. This is why the state changed the constitution to require a 60 percent vote to pass a constitutional amendment because before that, everything could be an amendment, even keeping your caged pigs out of their cages if they are pregnant.
14. When having sex, only the missionary position is legal. Whatever.
15. You may not fart in a public place after 6 p.m. on Thursdays. Umm…but it is perfectly fine the rest of the time?
16. You may not kiss your wife’s breasts. What’s with this one…so…what…you can’t kiss your spouse’s breasts, but what, can you kiss someone else’s breasts? Whatever.
17. Hunting and killing deer while swimming is illegal. How would one even do this? If you are shooting at it while in the water, I’d wager you are sinking, not swimming.

Of course, local laws and ordinances are sometimes some of the funniest things you can ever imagine, so I’m including some of them as well.

Local laws

Cape Coral – A $50 fine will be levied on anyone who allows a couch to sit in their carport. So, I guess Cape Coral must have quite the couch leaving epidemic. How could we possibly think this is a problem unless the couches are just left there to rot.
Pensacola – A woman can be fined after death for being electrocuted in a bathtub because of using self beautification utensils. I’m not even sure what this means, but I’m pretty sure the electrocuted woman (also known as dead person) won’t care if she gets fined.
Seaside – All houses must have white picket fences and full-width, two-story porches. This sounds like the perfect example of a homeowner’s association run amok.
Key West – Chickens are considered a ‘protected species’. I’m pretty sure they serve chicken on the menu, so I’m guessing there is some sort of wild chicken running around the Florida keys? Otherwise…
Pensacola – Citizens may not be caught downtown without at least 10 dollars on their person. Really?! Why not!?
Miami – It is illegal to park your elephant on 8th street on Sundays after 1 p.m. So, did the guy who got the fine for parking his elephant in the first place also bring this law about by parking it after 1 on Sunday? What’s with this?!
Destin – It is illegal to sell ice cream in a cemetery. Really?! This is where the vendor thought they’d see enough traffic to make money? I guess someone thought we needed to make this illegal to protect people from their own stupidity.
Miami – It is illegal to imitate animals. I guess this is intended to keep the animal imitators from getting shot by hunters or eaten by alligators?
Miami – No one may bring a pig with them to a theater. Having lived in Miami, that pretty much says it all.
Tampa – Women may not expose their breasts while performing a “topless dance”. I guess it wouldn’t qualify as topless then, so…I’m confused.

Show me the money!

So, this image shows, from 1981-2012, how much money our government has spent versus how much money it has taken in. Anyone else notice a problem here? First of all, let's be clear about one thing. The Clinton era appears to have brought in more money than it paid out, which was true as long as you continue to raid the social security "trust fund" (not that that really exists anyway). However, if you remove social security from this chart, the Clinton era surpluses disappear and all the rest of them look even worse than they do now.

However, let's ignore that for the purposes of this post. So, how did each President do in regards to the budget and spending overall. Well, technically, all of them failed because not a single one of them managed to spend less than was brought in throughout their Presidency. This chart is in percent to GDP in order to be a more accurate representation of reality since the total numbers we generally talk about tend to get lost in the discussion. What does this chart show.

First, it clearly shows that Reagan increased spending during his first several years. This was largely on defense and (for those of you who didn't live during this time) was for the purposes of trying to outspend the Soviets to try to force them to keep up with us. It also shows, that in 1983 when the economy was pretty bad and tax revenues dipped, Reagan cut spending. Now, it did bump up some after that, but by the time he left office, it was significantly lower than what he'd inherited. Of course, he was having to work with a Democratic majority in the House (the Republicans had the Senate), so both parties deserve some credit and blame here, but Reagan had ideals that the budget had to be reigned in and the government had to be smaller. He had to compromise with the opposition on many things, but did, I believe, start a trend. However, Reagan's average still has him spending 4.2 percent above GDP over his 8 years. An improvement for sure, but not enough. Of course, much of this spending was on defense, which eventually ended up bankrupting the Soviets in their efforts to keep up, so you take the good with the bad I guess.

Next was Bush I. We'll all remember the no new taxes pledge that was quickly violated. It is of note that revenues went down each of his 4 years in office while spending went up. You could attribute much of that spending to the Gulf War in the early 90s, but considering the large tax increase that was put in place by the Democratic Congress (the Democrats regained the Senate so had a majority in both houses as of 1988) that Bush then signed into law, you'd have expected a different result. Instead, revenues decreased. For those who look at Keynesian economics and scoff, this outcome is entirely consistent and expected. There is a fine line between the amount you can tax and increase revenue and the amount you can tax that decreases revenue because of decreased production in the economy. Keynesians ignore this principle, but it is a valid one, often overused by Republicans to justify tax cuts, but still a valid principle. Now, to be fair, there was a recession at the end of Bush's term which likely cost him the election and would have certainly decreased revenues as well. However, even with the decreased revenue and increased spending, the Bush I years still did better as an average than did Reagan, spending only 4 percent more GDP. I think this is largely because he only had 4 years by which to compare. The trend during his Presidency suggests that he would have fared much worse than Reagan if extrapolated out to 8 years.

Then came Clinton. He campaigned on his ability to reign in spending which won over many independent voters. He then went on to prove he could do it. He decreased spending as a percent of GDP every year he was in office while revenues rose. This is generally how things are supposed to work. Right now, we know that his policies created the dotcom bubble and generated more deficit spending on the part of average citizens than ever before, but those policies continued into the Bush II years. Plus, since the Republican "revolution" of 1994 swept the majorities of both Houses for the first time in 45 years, Clinton had to work with a Republican Congress to enact almost anything. Therefore, as with Reagan, the Republicans and Democrats must share the credit as well as some of the blame for what happened in the 90s. So, give credit where credit is due. The 90s was this generations equivalent to the 20s. Still, Clinton, over his 8 years, still managed to average .8 percent greater spending than revenues. Headed down the right path, but he needed more time I guess?

At any rate, Bush II took power and everything changed. We slipped into a recession, we cut taxes (probably more than we needed to), 9/11 happened...a pretty bad hand to have been dealt if you ask me. Still, spending and revenues were relatively stable in the first year. It was only after the tax cuts, 9/11, two wars and massive federal expansions in Medicare and with Homeland Security and TSA did the spending start to balloon. All this while revenues had dropped because of tax cuts and a recession. The tax cuts were supposed to help the recession and some evidence suggests they helped a little, but that isn't the point. Revenues dropped significantly. Republicans did abandon the principles that had won them elections in the 90s. Specifically, smaller government and less spending. They achieved neither of these goals during the Bush years. Is it any wonder the electorate turned on them in 2006. That said, Bush's spending was remarkably consistent during his Presidency. The Democrats took over Congress in 2006 so from that point on they have to share in the credit/blame. Amazingly, it seemed that the Democrats were on the right track, cutting spending in 2007, but then the economy tanked (which had been predicted by many but ignored by politicians). It was at that point that Bush's spending went up...this was the Bush stimulus plan which stimulated nothing. The Bush Republicans embraced Keynsianism along with the Democrats while the rest of us (some Democrats, many Republicans, and a LOT of independents) shouted NO. Amazingly, Bush's average was only 2 percent above revenues but this was largely due to what had been achieved during the Clinton years. Even so, Bush's spending was still significantly less than the amount of spending that took place during Reagan's first 3 years in office.

When Obama came in to office, he had a Democratic majority in both houses, which continued until the 2010 elections gave the House back to Republicans. This means he had 2 budget cycles where you can't blame anyone but Democrats. So, what happened. The first thing you'll notice is that spending jumped from about 21 percent of GDP in Bush's last year to nearly 26 percent of GDP in Obama's first year. That is all on the Democrats and it is all a result of two fallacious beliefs. One, that the New Deal worked (several studies have recently shown this to be nothing but a myth) and two, that Keynesian economics works. The fact that they never have worked for a prolonged time anywhere in the world seems to be lost on them. So, I believe Democrats are sincere in what they are doing, they are just sorely mistaken in the principles they are using to guide their actions. Now, 2010-2012 are nothing more than estimates, but I submit that 2010 is a pretty good estimate. The reason it has to be estimated is two fold. One, the 2010-2011 budget year isn't complete and so the exact numbers aren't yet known, but two, the Democrats didn't bother to pass a budget in 2010, so we are working off last year's budget with a few changes thrown in. The fact is that we aren't bringing in anymore than 2.5 trillion in revenues, so 3 trillion dollar budgets are irresponsible. We can also note that the President's budget for 2011 is 3.7 trillion dollars. This doesn't do anything to cut spending in reality. Additionally, the spending increase in Obama's first year alone turned back every bit of progress we'd made since Reagan took office because for the first time since 1983, the spending of GDP was above 24 percent. Again, this is all on Obama and the Democrats. The Republicans never spent this much when they were in power, even fighting 2 wars. We justify this spending with arguments the government must spend us out of recession using a keynesian approach. This has resulted in artificially low interest rates, increased printing of money, deficit spending beyond anything we've seen since world war II and the need to increase the national debt limit for the second time in 2 years, even though this President himself rightfully declared on the floor of Congress in 2006 that having to raise the national debt ceiling was an indication of a failure of leadership. Therefore, it is no wonder the voters kicked the Democrats out of the House in 2010. They can see, just as much as Obama could in 2006, that we have a failure of leadership. They can also see that this spending is unsustainable and will bankrupt us. Just this year, social security lost money for the first time in its history. This was several years before that was supposed to happen. Federal spending isn't going to make things better, it is going to drag everyone down with it. Sure, every President is guilty of this as demonstrated in this graph, but the current administration has exponentially compounded the problem.