Mens rea and our president

In case you didn’t go to law school, mens rea is Latin for “guilty mind.” Without mens rea, generally speaking, you have no crime.

You may ask, what does this have to do with Barack Obama? A lot, in my opinion. Why? Because our current president graduated from what many consider the finest law school in our land. And he wasn’t just any student. I hear he was also Editor in Chief of the Harvard Law Review. This president at some point supposedly taught constitutional law as well.

So whatever one may think about his intelligence or intellectual aptitude, I find it impossible to believe that he did not master the basics at law school. But I’m still not talking about mens rea. I’m talking about understanding distinctions and the rational arguments underpinning them. This is a man that has no excuse when it comes to understanding what he is doing with respect to the law. He understands the legal implications of his oath of office; he understands the legal significance of his position as head of the executive branch of our federal government; and he knows all too well the conventional understanding of what his job is, from a constitutional perspective, as the President of the United States.

The same cannot be said for, you name them: Mitt Romney, George W. Bush, John McCain, Ronald Reagan, even John Kerry and Al Gore. At some level these men, if they had to, could fall back on the excuse that they were simply acting with their heart, that they were doing what they believed right in their own eyes and what someone had told them was in keeping with constitutional requirements and norms. In other words if someone accused them of breaching their constitutional duty they could always claim an absence of mens rea. Bill Clinton could not. And Barack Obama cannot. The difference there is that Clinton never asserted executive privilege the way Obama has become so cavalier at doing.

I cite two examples (there are so many more). One Fast and Furious and the refusal to turn over documents that Congress quite simply has the authority to see.

But even more problematic is Obama’s recent amnesty pronouncements on immigration. At least with respect to Fast and Furious there can be a good old fashioned argument over where a line is drawn. On the issue of illegal immigration the president has simply proclaimed that he does not intend to uphold the law.

First, remember the words from Article II of the Constitution and the 1884 presidential oath of office:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

And the oath:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

As Joseph Curl writes, the president even told a group of young Hispanics in 2011:

“America is a nation of laws, which means I, as the president, am obligated to enforce the law. I don’t have a choice about that. That’s part of my job.

“Congress passes the law. The executive branch’s job is to enforce and implement those laws,” he said. “There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as president.”

Yet in the past week the president announced he would no longer enforce a key aspect of federally-legislated immigration laws, namely, that if illegal immigrants were younger than 16 when they illegally entered the country they can receive a 2-year exemption from immigration. This discretionary policy from the Obama administration will be extended to any illegal immigrant up to the age of 30.

Now I’m not here to debate the merit or wisdom of this law. But I am saying that it is a LAW. It also happens to be a law that many people in this country, right or wrong, support and which neither the Supreme Court nor any US appellate court has ever declared unconstitutional. What it is not is something that the president has discretion to enforce or not.

The bottom line is the president needs Hispanic votes in large numbers in key states to win this election and promoting this illegal amnesty program for illegal immigrants is one way he thinks he can pull that off. Obviously Democrats won’t complain about the overreach and the Republicans who do will be labelled as (a) racists and (b) rank partisans. Again, it is another carefully calculated move to arrogate power for himself that he was not given by the Constitution.

One may argue that this has been going on since the beginning of the republic and there may be some partial truth to that statement. The difference here is the sheer brazenness of the move and the outright flouting of bright line established law. This is not something that is blurred at the margins.

But most damning of all is the president’s guilty mind. The mens rea with which he has seized the reigns of power, ignored the law and turned his back on one of the most fundamental obligations he has as President of the United States.

He knows what he has done and he is without excuse.

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