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Vail Daily letter: You got it all wrong

Henry Bornstein
Vail, CO, Colorado

“It is better to remain silent and be thought a fool than to open one’s mouth and remove all doubt.” Abraham Lincoln

Mr. Gustafson’s Aug. 31 letter was an “obamanation.” His Sept. 12 letter is no better. Thus this response. Gustafson once said in response to my reply to his fabricated claim about the “myth of separation” that he does not waste his time reading anything he disagrees with. Maybe if he reads this he may actually learn something, but I doubt it.

Article II, Section 3, states in part: “he (the president) shall take Care that the laws be faithfully executed ….” Article II, section 1 states in part: “I will faithfully execute the Office of the President … and will to the best of my Ability preserve, protect and defend the Constitution of the United States.” The Constitution is the “supreme law of the land” and it takes precedence over any laws passed by congress and any state laws. It has been argued that the president is “America’s first magistrate.” (“America’s Constitution,” by Akhil Reed Amar.)



Article VI states in part: “This Constitution and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land ….”

If a congressional law is not consistent with the Constitution, the president has a right and obligation under the sections quoted above to ignore it. This principle did not start with Obama, as Gustafson seems to imply. It started with Thomas Jefferson. Jefferson refused to enforce the Sedition Act and the Alien Friends Act (1798), as he deemed them to be unconstitutional. There is serious question as to whether such actions are judicially reviewable.

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Gustafson’s unsubstantiated claims do not factually or legally point out any actions by President Obama that violate the Constitution. Gustafson’s claim that he is presenting a “constitutional history lesson” is a joke. It is clear that Gustafson is completely ignorant about the Constitution, its meaning and intent, its history and the case law interpreting same. In fact he is wrong in just about everything he has written in his last two letters. His claims are never supported by any credible source and are generally unsupportable. Gustafson should stop writing anything on any subject or issue about which he has no knowledge and has failed to research. Radical rightwing blogs and Fox are not credible sources.

Gustafson’s “history lesson” is also wrong. He discusses Andrew Johnson’s attempt to remove the secretary of war in violation of the Tenure of Office Act as an analogy to Obama’s alleged unconstitutional acts (executive orders, etc.). The attempted impeachment of Johnson was a purely political act for which the removal was the excuse. There is no provision in the Constitution that prohibits a president from removing any appointee, including those who have the advice and consent of the Senate.

In Myers v. United States, 272 U.S. 52 (1926), the Supreme Court ruled that the president has the exclusive power to remove executive branch officials, and does not need the approval of the Senate or any other legislative body. Chief Justice Taft’s opinion noted that the Constitution does mention the appointment of officials, but is silent on their dismissal.



An examination of the notes of the Constitutional Convention showed that this silence was intentional. The convention did discuss the dismissal of executive branch staff and believed it was implicit in the Constitution that the president did hold the exclusive power to remove his staff, whose existence was an extension of the president’s own authority.

The court found that the statute was unconstitutional, for it violated the separation of powers between the executive and legislative branches. In reaching this decision, it also expressly found the Tenure of Office Act, which had imposed a similar requirement on other presidential appointees and played a key role in the impeachment of President Andrew Johnson, to have been invalid. Further, this act had been repealed by Congress some years before this decision.

Gustafson states the following: “President Obama has appointed czars without the Senate’s approval. He also made an executive order to change the rules about deporting immigration violators to those who have violated the law. Both are direct violations of the Constitution.”

Gustafson is 100 percent wrong in both statements: The president has the right to appoint the so called “czars” without Senate approval and even more importantly, Obama never signed any executive order as Gustafson claims. These claims confirm my belief that Gustafson simply does not know what he is talking about. It is obvious that he does not understand what power a president has over appointments, and he does not know anything about “executive orders” or “signing statements,” or the difference between the two.

Gustafson could have first checked the Federal Register to see if Obama signed any such order. All executive orders going back to Hoover (1929) are available on line. There are numerous lies from the rightwing making these exact same claims, including this claim Gustafson also made: “His order is an obvious defiant act of congressional refusal to pass the Dream Act.”

Mr. Bush II issued 291 executive orders and at least 161 signing statements. Where were Gustafson’s attacks on all of these Bush constitutional violations? Certainly Bush should have been impeached also. But, no he was a Republican.

The Federal Registry defines and Executive order as follows: “Executive orders are official documents, numbered consecutively through which the president manages the operations of the federal government.” Executive orders do not require congressional approval. Thus, the president can use them to set policy while avoiding public debate and opposition.

Executive orders have been issued since at least 1789. Executive orders also may be authorized by the president’s independent constitutional authority (Cunningham v. Neagle, 135 U.S. 1, [1890]).

Various clauses of the U.S. Constitution have been cited to support the issuance of executive orders: “The executive Power shall be vested in a President of the United States of America” (art. II, § 1, cl. 1); the president “shall take Care that the Laws be faithfully executed” (art. II, § 3); and the Commander in Chief Clause (art. II, § 2, cl. 1), etc. Executive orders have the full force of the law.

With respect to the alleged unconstitutional appointment of “czars,” he is also wrong. This term was first used by Republicans in attacking certain FDR appointments. Now it used by the media and occasionally by a few Democrats. Fact Check’s research (Czar Search Sept. 25, 2009), indicates that Bush II had somewhere between 35 and 47 czars. “Now it’s turned odious again, with Republican senators calling czars unconstitutional and cable hosts like Beck and Sean Hannity characterizing them as shadowy under-the-table appointees used by Obama to dodge the usual approval processes.”

All presidents have the power and have exercised the power to appoint committees and advisers, assistants, office directors, special envoys and deputy secretaries, etc., to advise and assist the president in carrying out his executive powers. To my knowledge no president has been impeached or challenged in any court for such actions, irrespective of the party the president is from.

Gustafson also alleges: “He has refused to enforce existing immigration laws and to protect the country’s borders ….” Again, this unsupported claim is wrong: “The Obama administration has been the most aggressive in history at implementing immigration law and deporting those who have entered illegally, especially when they have been involved in crime. As has been documented, the combination of a slow economy and aggressive deportation has reduced the number of undocumented in the U.S. from 12 million to 11 million. That is the first decline in 20 years.”

“How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn’t make it a leg.” Abraham Lincoln.

Henry Bornstein


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