that was nice Onion type comedy. Its like you took a conservative's review of the problems created by Obama usurping Congressional authority with his pen (remember him doing that in areas such as immigration and dreamers) and then you grafted on a nonsensical conclusion.
1. Ultra Vires does not mean above the law it means outside authority. Who is to say what is is outside Presidential, Congressional or the Court's authority?
2. Well, the Court in Marbury vs. Madison decided it had the authority to review Congressional acts. Even though the Constitution did not explicitly provide for that authority. You could say that action was ultra vires. I note that the Courts have no real ability to enforce their rulings against other branches of government.
So that takes care of Congress and the Courts. What about the third branch.
Well as you imply the Founders gave Congress the power to take care of Presidents who overstep their authority or commit criminal acts while in office. Oddly, you seemed to have left out the remedy. Its called impeachment and then removal. (Another remedy could be seen when the house voted to take Obama to court.)
After being removed from office The DOJ could then file against a criminal case against the ex President. The ex President would then have to plead his self-pardon as an excuse. The courts would then determine the validity of a Presidential self - pardons.
Far from absurd... this method is provided for in the constitutional and it avoids a constitutional crisis and other oddities such as what happens if the president fires everyone as they try to prosecute their own boss.
If anything your argument requires conjecture about how the Supreme Court will rule, my argument is that no one knows til the court rules.
2. How come I am willing to bet you were arguing that when Congress does not act Obama had the power to create his own rules regarding immigration?
I am sure you were cheering Obama on when he committed ultra vires acts to allow Obamacare to function. Remember he made payments to insurance companies without power. Was that absurd to you? 17 times Obama said he did not have the power yet he went ahead an created Immigration law on his own.
..
http://www.politifact.com/virginia/...tte-obama-said-22-times-he-lacks-power-chang/
3. What was the remedy when Obama commited Ultra Vires acts?
that is right... Court review or impeachment.
Far from absurd. That is how the constitution works.
For originalists, as Scalia was, the question has already been answered more than adequately. The founders in their discussion left no doubt that the President was not above the law. In fact the Congress is given some very limited immunity, but the President NONE. This business about whether a sitting President may be indicted or may pardon himself becomes incredibly absurd conjecture in light of the Founders explicit determination that the President is not above the law.
Over time, Presidents have usurped power that the Founders intended to rest with the Congress. In legal terms one would say in these instances the President's action was ultra vires. Under the Constitution, Congress is mandated to make rules for its conduct. Unfortunately, and on occasion, Congress's rules have allowed one faction or another to hamstring the conduct of normal business. A consequence has been that, on occasion, the Congress has not expeditiously fulfilled its constitutional duties. There has been, in other words, Congressional malpractice. The Constitutional remedy for this malady is at the ballot box, but the remedy has proven inadequate. When Congress has failed in its obligations, Presidents have often stepped in with ultra vires action justified by what they viewed as necessity. Congress, via the Court, has failed in many instances to put a stop to these extra-constitutional actions. The result has been the gradual usurping by Presidents of powers originally intended to be given to Congress. Legal arguments based on precedence created by these ultra vires actions of the Executive should be viewed as specious. Nevertheless the collective impression is one misled by a long history of Presidents taking for themselves evermore power.
The Founders did not address directly the question of whether or not the President could pardon himself or be indicted, for good reason. The idea is so prima facie absurd that they had no reason to consider it. No reasonable person having just come through a revolt against a Monarch would ever entertain such an absurdity. What the Founders did do in their discussions, however, is make it explicitly clear that the President is not above the law. That principle is crystal clear to any constitutional originalist. The question of whether the President may pardon himself is parallel to the question of whether the President is above the law. The latter question having been answered explicitly, the former question is, therefore, also answered.
