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Rule of Law by from The Weekly Standard, January 31, 2014

President Obama has just announced the creation of a new program, which he calls myRA, as part of an overarching agenda he’s implementing, which could well be called myConstitution.

Under the heading “Year of Action: Making Progress Through Executive Action,” the White House announced January 29 that Obama is using “his executive authority to direct the Department of the Treasury to create ‘myRA’—a new simple, safe and affordable ‘starter’ retirement savings account.” Treasury Secretary Jack Lew, Obama’s former chief of staff, says the accounts are “modeled on the Roth IRA.” But the Roth IRA was created by law—passed by the people’s elected representatives in the House and the Senate (after having been spearheaded by Sen. William Roth) and signed into law by President Clinton—not by “executive authority.”

Does this sound more like the exercise of executive power, or of legislative power? Creating a new type of retirement account certainly doesn’t sound like a president carrying out his constitutional duty to take care that the laws be faithfully executed. And even if this isn’t technically the creation of a new kind of IRA but merely a rebranding of existing Roth IRAs (it’s a bit hard to tell), the administration’s choice of language strongly suggests that Obama is engaging in an alternative form of lawmaking—and is proud of it.

This latest undertaking adds to a long list of actions by Obama that have created a stench of lawlessness: his unilateral raising of the minimum wage for new federal contracts; his unilateral refusal to enforce Obamacare’s employer mandate, its mandated caps on out-of-pocket costs, aspects of its coverage mandates (after those had led millions of people’s insurance plans to be canceled), and its individual mandate as it pertains to those with canceled plans; his administration’s funneling of subsidies through federally run exchanges, in defiance of Obamacare’s plain language (which allows such subsidies to flow only through state-based exchanges); his refusal to enforce federal marijuana laws; his refusal to deport illegal immigrants under the age of 30; his refusal to enforce key aspects of the mid-1990s welfare-reform law; his refusal—in the wake of the revelation that his economic “stimulus” was costing taxpayers $278,000 per job (the number has since risen)—to release timely reports as mandated by the text of his own “stimulus” legislation; his issuing “recess” appointments to the National Labor Relations Board while the Senate was in session; and so on.

Congress cannot just sit by and watch this happen. Nor can it count on the efforts of the media to shame Obama into abiding by the legal limits of his office. During a gaggle aboard Air Force One, the White House press corps showed its usual diligence in addressing such matters, in the following exchange about myRA:

Reporter: This can obviously be created just by the stroke of a pen, you don’t need any congressional help for it?

Lew: That’s correct. We have the authority.

There was no follow-up.

In Federalist 51, James Madison wrote that the separation of powers provides half of the “double security” to our rights (the other half is provided by federalism—the separation of powers between the states and the federal government). In one of the most famous passages in American political writing, Madison offers further thoughts in that essay, which members of Congress should take to heart today:

The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. .  .  . Ambition must be made to counteract ambition. .  .  . It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

That last sentence is key. A well-informed, sober citizenry must ultimately hold our government officials in check. But especially in the absence of an attentive press corps, the citizenry relies upon members of Congress, governors, and leaders of all stripes to call attention to dangerous ambitions and encroachments by the president that jeopardize our constitutional forms.

© 2014 by The Weekly Standard LLC. Reprinted with permission.