By ANDREW P. NAPOLITANO
It has been well established under the Constitution and throughout our history that the president’s job as the chief federal law enforcement officer permits him to put his ideological stamp on the nature of the work done by the executive branch. The courts have characterized this stamp as “discretion.”
Thus when exercising their discretion, some presidents veer toward authority, others toward freedom.
John Adams prosecuted a congressman whose criticism brought him into disrepute, an act protected by the First Amendment yet punishable under the Alien and Sedition Acts, and Thomas Jefferson declined to enforce the Acts because they punished speech, and pardoned all those convicted. Jimmy Carter asserted vast federal regulatory authority over the trucking and airline industries, and Ronald Reagan undid nearly all of it.
The president has discretion to adapt law enforcement to the needs of the times and to his reading of the wishes of the American people. Yet that discretion has a serious and mandatory guiding light — namely, that the president will do so faithfully.
The word “faithfully” appears in the oath of office that is administered to every president. The reason for its use is to assure Americans that their wishes for government behavior, as manifested in written law, would be carried out even if the president personally disagrees with the laws he swore to enforce.
This has not always worked as planned. President George W. Bush once famously signed into law a statute prohibiting federal agents without a search warrant from reading mail sent to persons other than themselves — and as he was literally holding his pen, he stated he had no intention of enforcing it. That was a rejection of his presidential duties and a violation of his oath.
But today, President Obama has taken the concept of discretion and so distorted it, and has taken the obligation of faithful enforcement and so rejected it, that his job as chief law enforcer has become one of incompetent madness or chief lawbreaker. Time after time, in areas as disparate as civil liberties, immigration, foreign affairs, and health care, the president has demonstrated a propensity for rejecting his oath and doing damage to our fabric of liberty that cannot easily be undone by a successor.
Item: He has permitted unconstitutional and unbridled spying on all Americans all the time, and he has dispatched his agents to lie and mislead the American people and their elected representatives in Congress about it. This has resulted in a federal culture in which the supposed servants of the people have become our permanent and intimate monitors and squealers on what they observe.
Item: He has permitted illegal immigrants to remain here and continue to break the law, and he has instructed them on how to get away with it. His encouragement has resulted in the flood of tens of thousands of foreign unaccompanied children being pushed across our borders. This has resulted in culture shock to children now used as political pawns, the impairment of their lives, and the imposition of grievous financial burdens upon local and state governments.
Item: His agents fomented a revolution in Libya that resulted in the murder of that country’s leader, the killing of the U.S. ambassador and the evacuation of the U.S. embassy. His agents fomented a revolution in Ukraine that resulted in a Russian invasion, an active insurgency, sham elections, and the killing of hundreds of innocent passengers flying on a commercial airliner.
Item: He has dispatched CIA agents to fight undeclared and secret wars in Yemen and in Pakistan, and he has dispatched unmanned drones to kill innocents there. He has boasted that some secret reading of public positive law permits him to kill whomever he wishes, even Americans and their children.
Item: His State Department has treated Hamas — a gang of ruthless murderers whose stated purpose is the destruction of Israel — as if it were a legitimate state deserving of diplomatic niceties, and this has encouraged Hamas to persist in attacking our only serious ally in the Middle East.
Item: His Department of Veterans Affairs has so neglected patients in government hospitals that many of them died, and it even destroyed records to hide its misdeeds. His Internal Revenue Service has enforced the law more heavily against his political opponents than against his friends, and it has destroyed government computer records in order to hide its misdeeds.
Item: He has relieved his friends of the burdens of timely compliance with Obamacare, and he has burdened his enemies with tortured interpretations of that law — even interpretations that were rejected by the very Congress that enacted the law and interpretations that were invalidated by the Supreme Court.
He has done all these things with a cool indifference, and he has threatened to continue to do so until the pressure builds on his political opponents to see things his way.
The Framers could not have intended a president so devoid of fidelity to the rule of law that it is nearly impossible to distinguish between incompetence and lawlessness — and I am not sure which is worse. Archbishop Fulton Sheen often said he’d prefer to deal with a smart devil than a stupid one.
But the Framers did give us a remedy, and the remedy is not a frivolous lawsuit that the federal courts will no doubt reject as a political stunt. The remedy is removal from office. This is not to be undertaken lightly, as was the case when this remedy was last used. But it is the remaining constitutional means to save the freedoms the Constitution was intended to guarantee.
The choice is between two more years of government by decree or two years of prosecution. It is a choice the president has imposed upon us all.
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(Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom. Creators Syndicate provides his column.)