Author archives: Rob Schwarzwalder

The Constitution and Executive Orders

by Rob Schwarzwalder

November 20, 2014

Family Research Council does not take a position on immigration reform. We’ve got enough on our plate, from protecting unborn children and their mothers from a predatory abortion industry and sustaining traditional marriage as the foundation of our culture to protecting religious liberty as the “first freedom” of our republic.

However, we take a strong position on the Constitution: We believe in it. We agree with the Founders that a written text contains objective meanings and that, to borrow a phrase from Jefferson, neither an activist judiciary nor an impatient president has a right to turn the Constitution into a “thing of wax.”

That’s why conservatives have every right to be concerned, even alarmed, by the President’s pending announcement of an Executive Order on U.S. immigration policy.

The Constitution invests the President with the authority to enact policies to ensure the faithful execution of laws passed by Congress and signed into law by the Executive (Section 3, Article II), and the “executive power” (or “vesting” power) granted the President (Article II, Section I) universally is recognized by constitutional scholars as involving only execution of federal laws, removing from the Executive Branch those officers who serve at the President’s discretion, and the formation and execution of foreign policy.

Then-Supreme Court Justice Robert Jackson in Youngstown Sheet & Tube Co. v Sawyer (1952) offered a three-fold test for whether an Executive Order is valid:

  • When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”
  • When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility.”
  • When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter … Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

The operative phrase in the above bullets is in the third paragraph: “measures incompatible with the expressed or implied will of Congress.” Clearly, as National Affairs’ Andrew Evans writes, “President Obama’s executive order is intended as a substitute for a law that Congress has not passed.

Finally, federal Courts have ruled that Executive Orders that surpass the express intent of Congress can only be executed in times of national emergency. Even then, according to the

U.S. Code, “When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act. Such specification may be made either in the declaration of a national emergency, or by one or more contemporaneous or subsequent Executive orders published in the Federal Register and transmitted to the Congress.

In other words, even in the extreme event of a national emergency, the President has to justify by what authority he is declaring such emergency. And clearly, while both legal and illegal immigration policy involve a host of difficult issues, the Administration has not demonstrated, nor can it demonstrate, that any such emergency exists. If it did, why did the President – as he himself put it – wait a full year for Congress to act?

Legal scholar William J. Olson and Rutgers University historian Alan Woll have rightly noted that “Powers were separated not to make government more efficient but to restrain the natural bent of men, even presidents, to act as tyrants.” Mr. Obama hasn’t gotten what he wants, so he is acting like a monarch unconstrained by legality. This is not constitutional, republican governance. It is something else altogether – something that should evoke in everyone who values his Constitution-based liberty apprehension about what might come next.

News Flash: The Pope is Pro-Life

by Rob Schwarzwalder

November 17, 2014

As a non-Catholic, I have followed with some interest the controversy concerning Pope Francis and his attitude toward abortion.  Although he has made clear pro-life statements all along (“Every unborn child, though unjustly condemned to be aborted, has the face of the Lord, who even before his birth, and then as soon as he was born, experienced the rejection of the world”), some voices on the Left seem to have become nearly giddy at the prospect of the Pope softening his church’s stance on the sanctity of life.

Let’s put the issue to rest: Following are excerpts of comments he made today to a group of Italian Catholic physicians in Rome.  Read them, and then ask yourself if there’s any way you can say this man is not pro-life:

… in the light of faith and right reason, human life is always sacred and always “of quality”. There is no human life that is more sacred than another - every human life is sacred - just as there is no human life qualitatively more significant than another, only by virtue of resources, rights, great social and economic opportunities … When so many times in my life as a priest I have heard objections: “But tell me, why the Church is opposed to abortion, for example? Is it a religious problem?” No, no. It is not a religious problem. “Is it a philosophical problem?” No, it is not a philosophical problem. It’s a scientific problem, because there is a human life there, and it is not lawful to take out a human life to solve a problem. “But no, modern thought…” But, listen, in ancient thought and modern thought, the word “kill” means the same thing. The same evaluation applies to euthanasia: we all know that with so many old people, in this culture of waste, there is this hidden euthanasia. But there is also the other. And this is to say to God, “No, I will accomplish the end of life, as I will.” A sin against God the Creator!

A President Who Shrugs

by Rob Schwarzwalder

November 6, 2014

I’ve written elsewhere of Barack Obama’s growing disinterest in being President of the United States. This observation has been made by many others, too.

But his boredom seems perhaps to have descended into contempt for politics generally. Here are some headlines regarding his response to Tuesday’s election that make this point. Of note is that these are stories in mainstream, certainly non-conservative publications like TIME, the New York Times and National Journal.

Republicans just won the election. President Obama doesn’t much care.”

Obama: Midterms? What midterms?

Obama Isn’t Listening to Voters He Claims to Hear

Obama, Chastened But Uncompromising”

Allies Right to Worry About Passive Obama”

His Party Is at a Low Point, and Obama Seems Passive”

Obama Resists Course Change After Election Rebuke”

President Obama is Not a Happy Warrior”

As an exasperated Dana Milbank wrote in today’s Washington Post, the President “seems numb to this latest ‘sheallacking’ of the Democrats:”

“I hear you,” President Obama said to the voters who gave Democrats an electoral drubbing in Tuesday’s midterm elections. But their message went in one presidential ear and out the other … It’s true that voters are disgusted with both parties, but they were particularly unhappy with Obama. In exit polls, 33 percent said their votes were to show disapproval of him.

Milbank says that although Mr. Obama “had called Democrats’ 2010 losses a ‘shellacking,’ he declined even to label Tuesday’s results.” Later in his piece, Milbank concludes that Mr. Obama’s “solution was to defer responsibility.”

No President has the luxury of petulance, disdain or disengagement. Christians should pray that, for the good of our country, Mr. Obama not only would make wise decisions and turn from wrong views and failed policies, but that he’d get his head in a game with stakes far, far too high to let languish.

Beachheads of God’s Kingdom

by Rob Schwarzwalder

November 3, 2014

So, things can look pretty bleak, at home and abroad. But in addition to the fact that we have the legal right and moral duty to try to restrain evil and advance good, Christians can celebrate some very good things that are happening concurrent with the gloom that sometimes seems to surround us.

Here is some news to encourage believers who sometimes feel at sea without a rudder in the waves of our culture. Some stories deal with specific events, others with broader trends. All should help keep us steadfast as we work for life, family, and liberty.

  • The adoption movement is bringing thousands of little ones, at home and abroad, into loving Christian homes).
  • Although a recent survey says that most Americans see religion’s influence in culture waning, the survey also shows “most people who say religion’s influence is waning see this as a bad thing”. This presents a real opportunity for Christians to talk about how God’s standards for society actually work – and use them to share the good news about Jesus, too.
  • Believers in the U.S. are growing more and more aware of their suffering brethren across the globe; for example, FRC played a key role in the release of Christian Mariam Ibrahim from Sudanese captivity earlier this year. Voice of the Martyrs and Open Doors are among those leading in this area.

Is this list comprehensive? No. Does it diminish the grim news about abortion, violations of religious liberty, erosions of the family and our culture and other bad things we hear about so often? No.

But God is doing wonderful things despite the fallenness and corruption that is in the world. Let’s rejoice in that truth and from it gather continued strength to keep fighting the wrongs of our time.

Keep Calm and Don’t Carry On: On Being Joyful in the Battle

by Rob Schwarzwalder

October 24, 2014

Don’t carry on, that is, in the sense of panicking over what seems to be the moral collapse of the universe, or at least of our country.

Followers of FRC know that we believe we must advance and defend religious liberty, the sanctity of life, the sacredness of marriage, the centrality of the family, and the dignity of the person strategically (we want to win) and faithfully (regardless of any political outcomes). The battles in which we are engaged are intense. Their number is increasing. And the stakes, for the future of the nation we love, are accruing at an alarming rate.

But in the midst of our efforts, we need to remember a few basic things:

(1) While being burdened by and pained for all that’s wrong and for all who are being hurt by it, whether born or unborn, we should never lose sight of the fact that Christ’s ultimate victory in time and eternity cannot be deterred. As John the apostle records in Scripture’s final chapter, “He (Jesus) Who sits on the throne said, ‘Behold, I am making all things new.’ And He said, ‘Write, for these words are faithful and true.’ Then He said to me, ‘It is done. I am the Alpha and the Omega, the beginning and the end’.” “It is done:” He will do what He has said, and in the framework of eternity already has won the victory.

(2) God never promised His people an easy path. Consider Paul’s words to the church in Corinth: “We are afflicted in every way, but not crushed; perplexed, but not driven to despair; persecuted, but not forsaken; struck down, but not destroyed; always carrying in the body the death of Jesus, so that the life of Jesus may also be manifested in our bodies. For we who live are always being given over to death for Jesus’ sake, so that the life of Jesus also may be manifested in our mortal flesh” (4:8-11). There has never been a time when parts of the Body of Christ haven’t suffered somewhere. The believing slaves of pre-Civil War American could’ve spoken to that, for example. But through our suffering from without and the war against sin within, “the life of Jesus” is “manifested in our mortal flesh.” The fragrance of a rose is most acute when the flower is crushed. We should never invite such crushing – that’s masochism, not martyrdom – but let’s not ignore the opportunities nascent repression at home and active persecution abroad give all who love God (I write that humbly; I’m in no way comparing the current dangers to the American church to those being murdered and brutalized for their faith in places like North Korea, Iraq and Nigeria; may we all pray for them with vigilance and energy, as they are daily enduring unspeakable, horrific things).

(3) In America, we have it in our power to use legal means to stand firmly against social and political wrong. Through elections, petitions, protests, legal action, public awareness campaigns, advertisements, the media and other means, we can make our arguments and work to influence public judgment and enact sound public policies. Of course, each of us must count the cost: Political and cultural engagement involves time and money, stress and aggravation, unfairness and misrepresentation, some victories and some defeats. Just remember that not to engage is to engage; you’re simply opting for passivity in the face of evil, which is acceptance thereof – a form of engagement. That’s not an option the God of justice and righteousness gives those who have come to know Him through His Son Jesus Christ.

Christian joy comes through faith, obedience, and wisdom, whether you’re working to defend an unborn child and her mother at a pregnancy care center, standing in a voting booth, working in a hostile work environment, or just mowing your lawn. Keep calm. Don’t panic. Life is a vapor, one which, for Christians, is swallowed-up in victory.

An Inescapable and Irrepressible Conflict

by Rob Schwarzwalder

October 6, 2014

The Supreme Court today has “turned away appeals from five states looking to prohibit gay marriage, effectively legalizing same-sex marriage in those states and likely others — but also leaving the issue unresolved nationally.” So now same-sex “marriage” is legal in 30 states plus D.C.

My boss Tony Perkins issued a thoughtful statement about the ruling earlier today. In part, he said, “As more states are forced to redefine marriage, contrary to nature and directly in conflict with the will of millions, more Americans will see and experience attacks on their religious freedom.” Sadly, he’s dead right.

There are a number of dimensions to this issue, one of which was articulated by Dr. Al Mohler of Southern Baptist Seminary in an article on September 24: Homosexuality is “now inescapable for every congregation, every denomination, every seminary, and every Christian organization. The question will be asked and some answer will be given. When the question is asked, any answer that is not completely consistent with the church’s historical understanding of sexual morality and the full affirmation of biblical authority will mean a full embrace of same-sex behaviors and same-sex relationships. There is no third way, and there never was.”

Two observations: First, Dr. Mohler is right with respect to the inevitability of division within the believing church over this issue. Christians will choose to be faithful to Scriptural teaching or they won’t. There is not, as he notes, nor will there ever be, any middle ground between obedience and submission to the revealed will of God and rebellion against it.

Second, I’m haunted by the memory of William Seward’s comment, immediately before the Civil War, that strife between North and South over slavery constituted “an irrepressible conflict.”

Millions of Americans simmer with resentment at the coerced redefinition of marriage the courts are imposing on them, despite referenda in dozens of states where they have affirmed the traditional definition of marriage quite explicitly. The Dred Scott decision did not decide the issue of human bondage. The Roe v. Wade decision has not decided the issue of abortion on demand. And the continued federal court confusion over same-sex unions only postpones a day of legal reckoning that could create a measure of civic sundering unwitnessed in our nation for decades.

Even if the Supreme Court has valid reasons for postponing their decision on this issue, postponement is not resolution. I fear that whatever decision the Supremes finally reach will not resolve it, either.

Robert Gates’ Boy Scouts

by Rob Schwarzwalder

October 1, 2014

In scouting, there’s a secular emphasis on values and virtue that is not found anyplace else. We don’t teach civic values in schools anymore, so where else are kids going to learn it?”

So said former Defense Secretary Robert Gates, now head of the Boy Scouts of America, in an interview last month. Gates, who spearheaded the military’s renunciation of its historic policy banning homosexuality, said earlier this year that he “would have supported having gay Scoutmasters, but at the same time, I fully accept the decision that was democratically arrived at by 1,500 volunteers from across the entire country.”

I’ve written extensively on the Scouts’ decision to allow what the BSA itself has called “open and avowed” homosexuals into the ranks of Scouting (for example, my op-ed in U.S. News and World Report), and will not revisit the many issues involving this issue. Instead, I’m intrigued by Mr. Gates’ comment wedding secularism and “values and virtue.”

According to the Cambridge University Press Dictionary, secularism is “the belief that religion should not be involved with the ordinary social and political activities of a country.” Fair enough. But how does this square with the mission of Scouting?

Here is an excerpt from Scouting’s membership resolution, passed last year at the BSA’s annual convention in Dallas, Texas:

The Scout Oath begins with duty to God and the Scout Law ends with a Scout’s obligation to be reverent, and that will always remain a core value of the Boy Scouts of America, and the values set forth in the Scout Oath and Law are fundamental to the BSA and central to teaching young people to make better choices over their lifetimes …

Let’s see, Mr. Gates: An organization that promotes secular (i.e., non-theistic) values speaks of “duty to God” as “fundamental” and a “core value.” These are contradictory assertions, and cannot be integrated with any intellectual honesty.

Here is a brief summary of the world of Scouting, according to Robert Gates:

  • A Scout is to be “reverent,” but reverence for God is a secular value. I think …
  • Virtues and values are not grounded in revealed truth or natural law but in preferences and social adaptations.
  • We need an organization like Scouts to teach values and virtues, but we can’t talk about where these values and virtues come from, since to do so would mean taking a position on final and unchanging truth, which would be decidedly un-secular.
  • Kids aren’t taught values in their families, but we can’t define family since to do so would require a position on same-sex unions, which Scouting cannot take since to do so would be divisive and upsetting and, hey, what’s a Scout if not “cheerful,” right?
  • Boy’s Life magazine will continue to have Bible stories in every issue, even though the Bible teaches non-secular values like truth and honor and sexual abstinence outside of traditional, one man-one woman, monogamous marriage, which is something Scouting neither condemns nor condones.

Robert Gates is a patriot who’s done a lot of good for our country. He is also caught between the internal knowledge of what’s right (“the works of the Law written on his heart,” Romans 2:15) and acquiescence to post-modern thinking and secularism’s arrogant condescension toward religion.

Sad way to end your career, Mr. Secretary. Sad.

Islamism and Ferguson: There is No Moral Equivalence Between Them

by Rob Schwarzwalder

September 25, 2014

In his speech yesterday at the United Nations, President Obama used the shooting of an unarmed African-American man in Ferguson, Missouri to note that America indignation at evil is not self-righteousness. Here is what commentator Richard Grenell, a former American U.N. official, said about the President’s comments:

In a summer marked by instability in the Middle East and Eastern Europe, I know the world also took notice of the small American city of Ferguson, Missouri: (said President Obama). Morally equating the events of Ferguson to Islamic terrorism and Russia’s annexation of Crimea gives foreign diplomats from Arab countries and Russia the excuse they need to dismiss America’s condemnation of their actions. For anyone thinking that President Obama didn’t purposefully mean to equate the world’s problems with the events in Ferguson, two sentences later Obama blamed globalization for the public’s outrage in Ferguson: “And like every country, we continually wrestle with how to reconcile the vast changes wrought by globalization.” Overstating America’s issues doesn’t make us relatable; it makes others’ issues easily dismissible.

Equating a single and widely-condemned act of violence in America’s heartland, one that drew the personal attention of the Attorney General of the United States and enough FBI agents to make Al Capone shudder, with the systematic, calculated, and extensive mass murders perpetrated by the Islamic thugs in Iraq is such poor judgment as to be almost beyond belief. I am not diminishing the seriousness of Michael Brown’s killing, but it is not analogous to what so-called “ISIS” is doing in the Middle East.

The Islamists, as a matter of ideology, political conviction, and religious commitment, are dedicated to executing an agenda of death, including the murder (and beheading) of small children. Here is what Senate Intelligence Committee Chairwoman Diane Feinstein (D-CA) says about what the Islamists are doing:

I have a picture of what I estimate to be a 6-year-old girl in a gingham party dress, white tights, a little red band around her wrist, Mary Janes [shoes], and she’s lying on the ground, and her head is gone,” Feinstein said on CBS’s “Face the Nation.” “This could be an American child. It could be a European child. It could be a child anywhere,” the chairwoman added. “This is the mentality of the group that we are so concerned with. They have killed thousands; they are marching on; they have an army; they are well organized.”

A spasm of cruelty in Ferguson is not like a comprehensive program of genocide. The Russian invasion of Crimea and its threat to the Ukraine are the policies of a government, not the excesses of a single policeman. The President blurred the line between acknowledging America’s imperfection, in some contexts a good thing, with the outright humiliation of our country before the world.

There is no moral equivalence between America and ISIS. Mr. Obama would affirm this, surely, but in his desperate effort to discourage criticism he plays into our adversaries’ hands. Those who would highlight America’s flaws either to minimize their own evil or, out of envious hostility, to tear down rather than emulate the world’s greatest beacon of liberty, opportunity, and hope — that would be the United States of America — are wrong. President Obama seems to have internalized their criticisms, which says a lot about his approach to American foreign policy over the past nearly six years. A lot that’s disturbing.

All but a relative handful of the countries represented in the United Nations are authoritarian regimes, outright dictatorships, or hereditary (even if benevolent) monarchies. Anti-Semitism, cruel religious persecution, severe political repression, systemic policies that entrench poverty, quenching or abridging all the freedoms “endowed by their Creator” to their citizens: These things constitute the normal course of events in the majority of the world’s nations, all of which, to one degree or another, regularly castigate our country.

To allow such brutes, whether in developing countries, the Communist world, or totalitarian regimes to cow America into Uriah Heepish hand-wringing is maddening. No American, and certainly no American President, should succumb to it.

Children of the Heart

by Rob Schwarzwalder

September 23, 2014

Adoption is a regular target of psycho-babbling critics, race-mongerers, ultra-nationalists in countries filled with parentless children, and those who believe children are better warehoused than loved.

In addition to rejecting all of these demonic conceptions, it’s a personal joy for me to affirm the wonder that adoption brings into countless families, including my own.

Bethany Christian Services, through which my wife and I adopted our three children, has connected thousands of moms and dads with children who need the affection and security of a family. In a moving story on how Bethany brought him together with his father and mother here in the States, Ethiopia-born Getenet Timmermans tells how his brother and he “found a family” in Illinois, and with them found love, hope, and a future.

You can read Getenet’s account here. I hope you will, and that you’ll share it with anyone you know skeptical of bearing children from the heart and not just the womb.

A Tale of Two (Civil) Senators

by Rob Schwarzwalder

September 18, 2014

This morning, at the kind invitation of House Speaker John Boehner, I attended a Joint Session of Congress to hear courageous Ukrainian President Petro Poroshenko describe Russia’s threat to his country and plead for U.S. backing of his embattled nation.

It was moving to hear President Poroshenko, and heartening to see the at least superficial unanimity of Members of Congress as they stood, repeatedly, in ovations of support.

This is, I believe, the eighth time I’ve had the privilege of attending such Joint Sessions, including two State of the Union messages by President Clinton. At all such events, there is a general if perhaps strained sense of bonhomie among the Senators and Members of Congress as they mingle on the House floor. Among some of the Senators, particularly, there is a measure of good humor unseen during testy televised debates or hearings.

Today, for example, I noticed two of the Senators, one a respected conservative, the other a recognized liberal, laughing together as if fraternity brothers who surreptitiously had stolen their professor’s tires. It was fun to see.

Three cheers for camaraderie, for friendship, for civility. But as I’ve written elsewhere, civility becomes a pretext for avoiding hard choices and acknowledging real and sometimes angering divisions when “being nice” supersedes the need for opposition and advocacy. Civility is the oil that prevents the gears of debate from becoming so dry with contention that they grind into civil strife. But it is not itself the purpose for which those gears are driven.

As a Christian, I believe in the depravity of man, for which reason I am grateful to awaken to streets empty of men fighting with knives and tire-irons. Civility is important in a fallen world, no question.

Courtesy and kindness are essential to any well-equipped arsenal of public discourse and action. They can sooth raw tempers and smooth rough discourse, thus making the pursuit and location of common ground possible.

Yet ultimately, civility cannot cover-over the deep chasms between worldviews and priorities existing in our society. The two Senators I noted above are both possible presidential candidates of their respective parties. They disagree on the critical issues of “faith, family, and freedom,” not to mention economics and foreign policy. By virtue of the positions they have taken, Americans will have to choose not just between them as persons but between the sharply different worldviews out of which they operate and the policy conclusions resulting therefrom.

Civility can prevent verbal abuse and physical violence. To decide is to lead and often to divide, and decision-making, especially in an era when the decisions to be made represent two such fundamentally opposite set of values and arguments, is unavoidable.

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