The House Judiciary Committee held an extraordinary hearing on the "President's Constitutional Duty to Faithfully Execute the Laws," tuesday, December 3rd. As one Representative pointed out, it was in the very chamber in which the hearing took place yesterday that in 1974 the ranking member of the committee, a Republican, called for the impeachment of Richard Nixon. Today's testimony and questioning of a panel of academics essentially eliminated all other options but impeachment as viable and created the atmosphere in which impeachment was on everyone's mind as the only remedy available to counter a President who has systematically violated the Constitution he swore an oath to uphold. However, neither the members of the panel nor any Congressman was willing to provide leadership and clearly state the necessary conclusion.

Congressman after Congressman reported that his constituents are asking, "How can he [Obama] do that, and what are you going to do about it?" In a certain sense, as Lyndon LaRouche pointed out, the hearing yesterday was an attempt to bring forth an idea. On the other hand, the participants capitulated to popular opinion.

Chairman Goodlatte (R-Va) began by pointing out that in The History of the Decline and Fall of the Roman Empire (published 1776-1789), author Edward Gibbon described how the domination of the legislature by the executive led to the undermining of the rule of law. He also stressed that Obama is the first President since Nixon to ignore the law because he disagrees with it. Quoting from James Madison, he pointed out that the undermining of the separation of powers is the definition of tyranny.

Both in written testimony and during the hearing, Jonathan Turley, Shapiro Professor of Public Interest Law at George Washington University, stated that "President Barack Obama has crossed the constitutional line between discretionary enforcement and defiance of federal law." He stated that we are moving toward a "more Imperial Presidential model." "When a president claims the inherent power of both legislation and enforcement, he becomes a virtual government unto himself. He is not simply posing a danger to the constitutional system, he becomes the very danger that the Constitution was designed to avoid." Turley stressed that the U.S. Constitution was designed to thwart the "royal prerogative" exercised by King James I. "If this trend continues unabated, Congress will be left like some Maginot Line on the constitutional landscape — a sad relic of a once tripartite system of equal branches."

Turley also stated that what we are seeing is the rise of the "Ueber-Presidency." But he failed to identify the actual source of the idea of the Unitary Executive, which is the legal theory propounded by the Nazi crown jurist Carl Schmitt in defense of Adolf Hitler, and the fact that Schmitt's ideas have been advocated by Obama cronies Cass Sunstein, Eric Posner, and Adrian Vermeule in a concerted attack on the very Madisonian concept of the separation of powers he himself defends against the Ueber-Presidencies of Bush and Obama.

Rep. Lamar Smith (R-Tx) asked the panelists if the president has acted contrary to the Constitution. Three of the four panelists, Turley, Nicholas Rosenkranz (Georgetown University Law Center), and Michael Cannon (Cato Institute) answered yes. They were asked what remedies exist. This same question was asked several times during the hearing, inclusively by Rep. Steve King (R-Ia) and Rep. Fahrenthold (R-Tx).

- Inadequate Remedies -

The hearing reviewed a series of remedies, none of which was adequate to the task of defending the Constitution against a serial violator such as Obama, with the exception of impeachment. Congress could pass a resolution of disapproval which would be ignored; it could exercise the power of the purse, but Obama would just shift around the funds; it could go to the courts, but either the courts would not grant standing to Members of Congress or the issue would not be resolved until after the executive was out of office; it could seek to oust the offending President in elections, but, as pointed out in the case of the IRS targeting of political opponents, elections are also affected by decisions of the Executive, and although no one mentioned it, the current President cannot run for a third term, so he cannot be removed from office through an election. Other proposals included introducing legislation to establish legal standing for members of the Congress in legal challenges and amending the Constitution, neither of which would accomplish anything.

Through this process of exhaustion or elimination, the idea of impeachment increasingly emerged as the only viable remedy provided by the Constitution. As one panelist said, the remedies are either elections, or in the extreme case impeachment. And yet, although the testimony clearly established that Obama's systematic violation of the constitution is in fact an extreme case, the necessary conclusion was not drawn, but merely approximated.

It was as if the participants were trying to square the circle through the method of exhaustion of the Greek mathematician Eudoxus, not realizing, as proven by Nicolas of Cusa, that the circle cannot be squared.

Rep. Darrel Issa (R-Ca) pointed out that Nixon withheld tapes that had been subpoenaed by Congress, and then asked the panelists whether the court's actions were appropriate in ruling that he must comply with the subpoena. He then asked, on what basis can Obama then say that he is above the law in Operation Fast and Furious, when his administration insisted that the courts should not decide the issue? If Congress can't go to court after a contempt vote, the imperial presidency is complete. If the court had not ruled that Nixon had to comply with a subpoena, he would never have been forced out of office.

Rep. King asked, how are the President's powers limited? What is the remedy if the President declares war? He then said the alternative is ..., but refused to utter the word in the hearing.

Cannon said that we should not be reluctant to use the word "impeachment." Impeachment is a viable remedy if the violation of the Constitution is willful and repeated. He also asked: How many bombs does a President have to drop before it is an act of war?

Cannon also pointed out that if a constitutional action is not taken to restore the Constituion, then we are facing anarchy. If people come to believe government is no longer constrained by the law, they will come to the conclusion that they are also not constrained.

Rep. Tom Marino (R-Pa) asked, how many times do you have to violate the Constitution — one time, twice — whether it is Obama violating the war powers act, or [Bush] going into Iraq before action is taken?

Rep. Gowdy (R-SC) then asked whether a chief executive can fail to enforce categories of law which are mandatory. Can the President say you only need one ID to purchase a gun when the law requires two IDs? If he can, then, can he also fail to enforce an election law or suspend an election law? What is the difference between the two actions? Can Congress pass mandatory sentencing minimums and maximums for drug violations? If so, can a president exceed the statutory maximum and keep someone in jail indefinitely?

Rep. Trent Franks (R-Az), referring to Obama's assertion of the royal perogative, said that we had fought the Brits over this issue.

Rep. Holding (R-NC) then asked Rosenkranz what he meant by impeachment being appropriate in extreme cases. What violations of the Constitution rise to the level of impeachment? Rosenkranz argued that the Congress should think about a pattern, a willful intent to violate the Constituion.

Rep. Doug Collins stated that the hearing was disturbing to him. There has been a progression of executives, both Republican and Democratic, who have violated the Constitution. People say this is not the way it is supposed to work. This institution, the Congress, Article I of the Constitution, has to matter again. We have to hold people accountable when they bypass the Congress in violation of the Constitution. What can we do? People in my district say, impeach him.

Rep. Gohmert (R-Tx) recalled that when the President decided to attack Libya, he said he didn't have to come to Congress. He didn't need Congressional approval. We were ready to help Syrian rebels, including al-Qaeda, and planned to bomb Syria. What gives the President the authority to carry out bombing of a country? We would consider it an act of war if someone bombed us.

Turley responded that, at the time, the President said he alone defines what a war is, and this is not a war. Turley said we are returning to a "state of nature!"

Gohmert continued: The President killed al-Awlaki in Yemen. What authority does he have to kill U.S. citizens?

Turley and others said they don't believe he has the authority, and that the kill list is flagrantly and dangerously unconstitutional.

- Party Loyalty or Principle? -

Toward the end of the hearing, Cannon called for Congressmen to defend the Constitution, not just act on party loyalty. He said that we have to get Democrats to care about these issues when a Democrat is President, and we have to get Republicans to care about these issues when a Republican is President.

At this point all the Democrats had left the hearing room. But then, Rep. Steve Cohen returned to ask two questions of the panelists: Do any of you believe that the President has committed impeachable offenses? Do any of you think that Bush going into Iraq was an impeachable offense? None of the panelists had the courage to answer in the affirmative.

Only Turley answered: Obama violated the Constitution in Libya.

Rep. Poe (R-Tx) stated: "President Obama has said we are not a banana republic. But a banana republic is a lawless country."

The significance of this hearing was that the question of impeaching Barack Obama was inescapably placed on the agenda as only action appropriate to the threat posed to the Constitution by the President's systemic and willful violation of the Constitution. But what was also on display was the continued lack of leadership of our elected officials.

An idea was conceived. Now the only thing wanting is the political will to deliver.

http://larouchepac.com/node/29083