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Speaking the Truth

Gary is an author, trial lawyer, Mequon-area resident and town of Cedarburg supervisor. He is a columnist for the News Graphic and writes for several Wisconsin area magazines and is a national columnist with The American Thinker and PJ Media.  He lives with his wife, Lisa, and has three sons ages 18 to 28. Gary won Ozaukee County in his bid for the Wisconsin Assembly's 60th District in 2011, but came up just 58 votes short.

ARE PRESIDENT OBAMA'S EXECUTIVE ORDERS CONSTITUTIONAL?

President Barack Obama has a new “go-it-alone” strategy which he highlighted in last January's State of the Union speech.  His tool is something called “executive orders.” Recently, Obama took to the podium and announced his plan to legalize up to 5 million illegal aliens, he claimed that he had the authority to do so, and his administration claims presidents do this all the time. But there is a huge difference between what the President of the United States just did and what all presidents before him have done. In order to appreciate the history power grab and stop pointing at the executive orders of George W. Bush, you must appreciate the law behind the concept of an executive order. 

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ARE PRESIDENT OBAMA'S EXECUTIVE ORDERS CONSTITUTIONAL?

President Barack Obama has a new “go-it-alone” strategy which he highlighted in last January's State of the Union speech. His tool is something called “executive orders.” Recently, Obama took to the podium and announced his plan to legalize up to 5 million illegal aliens, he claimed that he had the authority to do so, and his administration claims presidents do this all the time. But there is a huge difference between what the President of the United States just did and what all presidents before him have done. In order to appreciate the history power grab and stop pointing at the executive orders of George W. Bush, you must appreciate the law behind the concept of an executive order. Also known as “proclamations”, these executive orders have been used by every president since George Washington to act decisively in times of war, respond quickly to natural disasters or economic crises, to encourage or discourage regulation by federal agencies, or to promote civil rights. In a speech a few months ago, Obama laid the groundwork for an executive power grab the country hasn't seen since FDR: What I offer tonight is a set of concrete, practical proposals to speed up growth, strengthen the middle class, and build new ladders of opportunity into the middle class. Some require Congressional action, and I’m eager to work with all of you. But America does not stand still – and neither will I. So wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do. The party not in power hates executive orders – until they’re in power. When George Bush was president, then-Senator Obama criticized executive orders, saying, “There is no shortcut to politics, and there’s no shortcut to democracy.” It is true that “Progressive” Democrat presidents have broken all the records with regard to the number of executive orders issued. George Bush issued 291 such orders compared to Bill Clinton’s 364. But Franklin Roosevelt broke all the records, issuing 3,522 executive orders, roughly a fourth of the total number issued by all other presidents combined. Interestingly, even the Emancipation Proclamation issued by Abraham Lincoln was a combination of two executive orders – one on September 22, 1862 stating that if the rebels didn’t end the Civil War by the end of the year all slaves would be declared free, and (being careful to respect the limits of his authority and justify it as a war measure necessary to cripple the Confederate Army) one on January 1, 1863, declaring that slaves in only four states to be free It only freed slaves in specific areas (didn’t apply to border states or areas under Union control) still rebelling against the Union because Lincoln had no actual power to free slaves in areas under Confederate control. Slavery actually wasn’t outlawed until the 13th Amendment became law on December 18, 1865. Barack Obama is on the low end when it comes to the number of executive orders issued when you consider the total number of executive orders issued – a mere 168. In the spring of 2012, President Obama issued an aggressive string of executive orders to combat what he viewed as hopelessly-deadlocked Congress. Some of his more controversial and arguably unconstitutional executive orders are as follows: 1. Directed the Justice Department to stop defending the Defense of Marriage Act; 2. Gave states waivers from federal mandates if they agreed to education overhauls; 3. Changed significant provisions of and the timing of Obamacare; 4. Declared an anti-gay-rights law unconstitutional; 5. Reshaped immigration policy by ordering the federal government to halt deportation of certain illegal immigrants. Each unilateral action by the president substituted for a failed legislative proposal. "I've got a pen, and I've got a phone," he said. However, under the Constitution, that is not the way things are supposed to work. When asked recently whether the president has the constitutional authority to act on climate change without congressional approval, Sen. Ted Cruz (R-Texas) said that the president has asserted power that he simply doesn’t have and that his disregard for the Constitution “threatens the liberty of every American.” So is our president taking unprecedented imperialistic action into his own hands and playing King within our Constitutional Republic when he issues the executive orders he has issued? Or is this just more political party rancor and a bitter GOP taking swipes at a president desperate to accomplish something before his time in office is done? There are legitimate executive orders and there are illegal actions which violate the Constitution. Knowing which are which requires a lawyer. So, I decided to conduct a legal analysis of a few of President Obama’s executive orders to see if they constitute legitimate extensions of the president’s authority, or something more along the lines described by Senator Cruz. Constitutional Executive Orders An executive order is a directive handed down directly from the executive branch of government without input or oversight from the legislative or judicial branches. Executive orders are hard to accurately categorize because they take so many forms. There are executive orders, proclamations, directives, memos and other orders which allow a president to get his way on certain issues within the limits of the Constitution and federal law. Proclamations, for example, are like executive orders, but are aimed at people who are not within the government. Executive orders are directed toward people within the government. The president’s directive to raise the minimum wage for new federal contractors is an executive order. His action to anti-deportation order came out as a policy memo from his Homeland Security secretary. The U.S. Constitution does not specifically mention executive orders, but presidents argue that the power to issue them is implied in the following statements in Article II of the Constitution: • "The executive power shall be vested in a President of the United States" • "The President shall be Commander in Chief of the Army and Navy of the United States" • "He shall take care that the laws be faithfully executed" Those who argue against or urge limits on the use of the unilateral power associated with executive orders remind us that the American system of checks and balances is undermined if we give the power to issue “executive legislation” to the executive branch. Legal scholars disagree even on whether there's a constitutional "bright line" that defines what a president can do on his own and what requires congressional action. Here is where it gets interesting. Executive orders can and routinely are challenged in court and can be overruled by the judicial branch or nullified by the legislative branch after the fact. To determine the constitutionality of an executive action, the U.S. Supreme Court must look at the “character” of the actions taken and their subject in order to determines whether the action taken is excessive and unconstitutional. The nation’s highest court has not left our president without guidelines. Youngstown Sheet & Tube Co. v. Sawyer In 1952, the Supreme Court decided the case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), also known as “The Steel Seizure Case.” At the height of the Korean War, President Truman was faced with a strike of the nation’s major steel producers by the U.S. Steel Workers of America. Instead of invoking the emergency provisions of the Taft-Hartley Act (which had been passed by Congress over Truman’s veto) to prevent the union from striking or using the Defense Production Act (which would have legally allowed seizure of the plants), Truman passed over Congress and issued an executive order seizing their production facilities and kept management in place. A federal judge issued an injunction barring the government from holding the steel plants and the case was appealed to the U.S. Supreme Court, which declared that the President had no power to act, except in those cases expressly or implicitly authorized by the Constitution or an Act of Congress. It was Justice Robert Jackson's concurring opinion, however, which the Youngstown decision will be remembered for. Justice Jackson noted that the President's authority to issue executive orders (EO) and proclamations can be broken down into three categories: (1) Those issued pursuant to an express or implied authorization of Congress. Here the president’s authority is at its maximum. The EO is invalid only if the federal government as a whole lacks authority to do what the EO does. (2) Those based upon undefined powers that lay in a "zone of twilight" where the President acts solely on the basis of his independent power and Congress has not spoken. Congressional inactivity or indifference may sometimes enable measures on independent presidential responsibility. In this area, the validity of the EO depends on the imperatives of events and contemporary imponderables rather than on abstract theories of law. (3) Those incompatible with the expressed or implied will of Congress, and thus rely solely upon his constitutional authority. Here presidential EO power is at its lowest, and must be scrutinized with caution before being taken, because the EO is only constitutional if a court can disable the Congress from acting on the subject. With regard to this third type of EO, Justice Jackson warns that what is at stake is the American system of checks and balances – the very equilibrium established by our constitutional system. Here we must recall that our current president has shown a heightened ambition to “get around” the U.S. Constitution he swore to uphold and protect. In “The Audacity of Hope,” he wrote that he could not reject “the school of thought that sees the Founding Fathers only as hypocrites and the Constitution only as a betrayal of the grand ideals set forth by the Declaration of Independence.” Later, in a 2001 interview with Chicago public radio station WBEZ, State Senator Obama stated: "The Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf." Thirty years later the Supreme Court reviewed President Carter’s EO seizing of Iranian assets in response to the Iran Hostage Crisis, as well as President Reagan’s ratification of that EO. In Dames & Moore v. Regan, 453 U.S. 657 (1981), the presidents’ actions were held constitutional because they were done specifically pursuant to congressional authorization and, therefore, because they involved national security and Congress had acquiesced in the president’s actions, were issued pursuant to the strongest of presidential authority. President Obama’s five executive orders above are clearly unconstitutional under the guidelines set forth by the U.S. Supreme Court because the five executive orders are not only merely “incompatible” with the expressed or implied will of Congress, they directly contravene, change, or alter acts of Congress in violation of the separation of powers and the U.S. Constitution. Congress set forth specific deadlines and enforcement laws with regard to the implementation of Obamacare and the president has changed them on his own authority because it was politically advantageous to do so. Congress enacted the Defense of Marriage Act and Obama’s executive order to stop defending it is directly contrary to the will and intent of Congress. He has declared certain laws “unconstitutional” – something that not even the most radical liberals have suggested is within the purview of the executive branch. He has also halted the enforcement of existing immigration policy enacted by Congress pursuant to their congressional authority on his own initiative because he simply didn’t like the law. Lastly, he has exempted a number of states from the No Child Left Behind Law which was duly passed by Congress. And these are just the tip of the iceberg. On Monday, February 10, 2014, the Obama Administration announced yet another unconstitutional edict. This time the regime has reversed Congress once again, pronouncing that it will violate the Affordable Care Act's employer mandate for the second consecutive year - in direct violation of the law Congress voted on and passed. Obama's Treasury Department said it will delay the mandate's penalty another year for small businesses with 50 to 99 employees and will also adjust some of the requirements for larger employers. Under the Executive Branch's new legislation - passed without a single vote in Congress, businesses with 100 or more employees must offer coverage to at least 70% of full-time workers in 2015 and 95% in 2016. Congess didn't debate and pass this law and Obamacare provided quite differently. Our president just willed the new laws into existence. These are clearly unconstitutional proclamations committed for purely political reasons. More recently, Obama's executive order halting the enforcement of U.S. immigration law is a continuing effort to legislate from the Oval Office on issues of immigration. He's even given it a name, just like a real Congress would. President Barack Obama announced "Deferred Action for Childhood Arrivals (DACA)" program with a speech in the Rose Garden of the White House on June 15, 2012, a date chosen as the 30th anniversary of Plyler v. Doe, a questionable Supreme Court decision barring public schools from charging undocumented immigrant children tuition. Even then, Republican leaders denounced the program as an abuse of executive power. The initiative was in part a reaction to the failure of the DREAM Act, a bill that would have granted conditional permanent residency to a similar but more restricted group of illegal immigrants. The U.S. Citizenship and Immigration Services department began accepting applications for the program almost immediately. This isn't a duly-enacted law, mind you – it's the prosecutorial whim of one man. Obama's November 20, 2014 executive order expanded the population eligible for DACA to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years. It is all a gradual progression toward amnesty without securing our national borders. This most recent overreach of executive power is defended by many of the president's supporters by claiming that it amounts to prosecutorial discretion – a simple and, until this president, uncontroversial matter of resource allocation. Simply put, criminality exceeds the resources available to prosecute it, so law enforcement must prioritize. However, it is by no means a grant of authority to thwart laws passed by Congress. Congress and the courts can neither compel a president to enforce the laws nor stop him from using his plenary pardon authority to grant a sweeping amnesty. That gets Obama two-thirds of the prize he is pursuing — namely, several million aliens whose illegal status has been purged, put on the path to inevitable voting rights that will give Democrats an invincible electoral majority. Obama claims to have been deporting more than previous presidents, but as usual, the public is being fooled. The Administration has been counting illegals caught at the border and turned away as "deportations." The president has replied that he will forgo executive action if Congress will pass an immigration bill that is agreeable to him and has assured us that he will happily sign and execute it. Unfortunately, nothing is as it seems with this bunch. The president has no interest in enforcing immigration law as it is currently written, going so far as to intentionally mislead lawmakers across the aisle about the extent of deportations on his watch. “Prosecutorial discretion” is a reasonable justification for a variety of actions, and Republicans recognize that the president has that power. However, it is a plausible explanation only when it is accompanied by good-faith efforts to carry out the law as written. That clearly has not happened here. If you are counting actual deportations, the Department of Homeland Security reveals that they have fallen by 50% since 2008. The uninformed supporters of our president blindly defend this usurpation of executive power by noting that “all presidents issue executive orders”, but there has never been a president in history who has so brazenly sidestepped Congress’ powers and usurped the role of lawmaker. It is now also clear that the nation’s former attorney general has been of absolutely no help in giving our president guidance on this subject. In responding to questions at a Senate hearing, Eric Holder was asked to explain to Congress why he thought Barack Obama was within his constitutional limits when he reversed Congress by issuing an executive order to delay Obamacare’s employer mandate. After Senator Mike Lee (R-Utah) read to him the above Supreme Court’s rulings on the matter, Holder replied: "I’ll be honest with you, I have not seen — I don’t remember looking at or having seen the analysis in some time, so I’m not sure where along the spectrum that would come.” The president whose response to unrest in Ferguson, Missouri, the launch of U.S. airstrikes against ISIS, the beheading of an American citizen by ISI, and the recent spread of Ebola to America was to take a vacation or play golf, has taken a vacation from the U.S. Constitution. Armed with his radical pen and surrounded by folks as clueless as he is, President Obama has fulfilled the words of humorist Will Rogers, who observed that Congress doesn't make laws anymore, "they just wave at the bills as they go by." It is no wonder that many members of Congress are truly wondering if they really are the nation’s lawmakers any more.

WHY AFRICAN-AMERICANS SHOULD VOTE REPUBLICAN

 On April 10, President Barack Obama and two former Democrat presidents, Bill Clinton and Jimmy Carter, celebrated the 50th anniversary of the Civil Rights Act and the legacy of former President Lyndon B. Johnson at Johnson’s presidential library in Austin. Never one to let facts get in the way or pass up an opportunity to mislead his country, the president cast LBJ and the Democrat Party as champions of civil rights and said that without LBJ’s push to end legal segregation he himself wouldn’t be in the White House. Racism, political correctness, and a civil rights struggle without end are all seemingly essential to the survival of the Democrat Party. But it was Dwight D. Eisenhower and Republicans who are to be credited with the advance of modern civil rights – not LBJ and the Democrats who fought it every step of the way. In fact, the depth of Johnson’s strong opposition to civil rights is a convenient fact lost to political history. Honoring the success of civil rights in America and reminding ourselves how far we have come is important and laudable. Rewriting history is not.

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THE AXIS OF LIBERALISM: Why Hollywood, Academia, and the Press Are Liberal

 The triumvirate of media, academia, and Hollywood has been referred to as the Axis of Liberalism. The media with its liberal bias swooned over the election and re-electon of Barack Obama and has helped influence public discourse during significant watershed moments in our country's history. Academia, out of touch with most of America, still favors reparations for slavery and by a 13 to 1 margin votes overwhelming on the left, yet a majority of Americans ship their young, impressionable children off to these spider holes for liberal indoctrination, paying dearly for it in the process. Hollywood elitists with time on their hands spout liberal party lines and adopt leftist causes because it is a smart career choice, and the world appears to listen.

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A LOCAL EXAMPLE OF SENSIBLE GOVERNMERNT

 Washington, D.C., the state of Illinois, and the city of Detroit could all learn something important from the Town of Cedarburg. All government entities, no matter how big or how small, must live within their means. The Town of Cedarburg is the only municipality in Ozaukee County to not raise its property tax rate for 7 years in a row. Last month the town again froze its 2014 property tax rate at $2.32, one of the lowest of the 16 municipalities in Ozaukee County. It continues to be a shining example to local, state, and federal government agencies across the country which have fallen prey to the Svengali-like lure of out-of-control tax and spend policies and unnecessary growth and spending. The Town of Cedarburg has been able to do this for one simple reason – its board is made up of conservative business owners who remain steadfast to the simple, inexorable policy of running government like any other business. The results are undeniable.

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