Is Pope Francis Really an 'Unfaithful Bishop?"

Once again, the readers of this page were treated to dueling op-eds concerning the Catholic Church’s recent Extraordinary Synod on the Family -- and indeed, on the Catholic Church itself: one by Don Wooton and one by the Rev. John Theiryoung, of Aledo.

Mr. W. favors compassion; Father T., favors orthodoxy. Mr. W. believes that Christ will reject no one -- no “sinner” -- who comes to him -- even if the sinner comes without first having repented. Father T. believes Christ would bar the way of those sinners who are divorced and have entered second marriages without the blessing of a priest, until they have repented of their sin -- their “adultery.” Father T. is so certain that he refers to those bishops who would not agree with his view of Catholicism as “unfaithful bishops.” The real question for me, is would Father T. label Pope Francis as an “unfaithful bishop?"

Most Americans probably have never heard of German Cardinal Walter Kasper, the only cardinal Pope Francis invited to speak to the 2014 preparatory two-week session of the Catholic Church’s Extraordinary Synod on the Family. He is author of a controversial proposal that would make it easier for divorced, civilly remarried Catholics to receive Communion. The Cardinal believes Pope Francis backs the measure, but that Pope Francis would not apply it without support from bishops at the 2014 and 2015 sessions of the synod.

The National Catholic Reporter writes that Pope Francis presided at the 2014 session, but never expressed his views, keeping silent throughout the two weeks of discussions, while encouraging the participating bishops “to speak freely.” Indeed in his opening remarks, the Pope said, "Everyone needs to say what one feels duty-bound in the Lord to say, without respect for human considerations, without fear."

By church law, according to the Catholic News Service (CNS), divorced and remarried Catholics are not admitted to Communion unless they obtain an annulment of their first, sacramental marriages or abstain from sexual relations with their new partners, living together as "brother and sister."

In an interview with CSN, Cardinal Kasper said, "I had the impression the pope is open for a responsible, limited opening of the situation, but he wants a great majority of the bishops behind himself. He does not like division within the church and the collegiality of bishops." (catholicnews.com/data/stories/cns/1404088.htm)

The Cardinal argues, “That, in certain cases, the church can tolerate something that, in itself, is unacceptable: a couple living together as husband and wife in a second union.”

Critics commonly point to several scriptural prohibitions of second marriages, especially Jesus' words in Matthew 19:9: "Whoever divorces his wife (unless the marriage is unlawful) and marries another commits adultery."

Cardinal Kasper responds that Matthew 19:9 must be read in the context of Christ’s larger, essential  “message of love, of mercy, of forgiveness and of a new chance."

The cardinal is uncomfortable describing second unions as adulterous, especially in a “pastoral context.”

"If you tell people who live in this way, and [who] do it in a responsible way, [that they are living in]  ‘permanent adultery,’ I think they would feel insulted and offended ... Permanent adultery? It seems to me too strong."

The Cardinal notes that “second unions,” while not equivalent to  “sacramental marriage,” possess many of the "essential elements of marriage and of a family: there is love, there is commitment, there is exclusivity, there is forever, there is prayer life, there are children who are well-educated in Christian life.” Additionally, “there is a public dimension."

Cardinal Kasper expresses "high esteem" for those who abstain from sexual relations” in their canonically irregular marriages, but he questions "whether this can be the path for everybody -- 
especially for younger people? He argues that there is danger in focusing only on the "sexual relations aspect," while ignoring what might be the many other good aspects of the relationship. He suggests that under the “right circumstances,” the church might not merely tolerate sexual relations in an "irregular" union but even consider them good. Such marriages frequently have  “positive values; not only ... negative values.”

Cardinal Kasper believes when love is involved, the church’s first word, in every situation is, “Yes.” He believes the church should say, “I'm happy that God gives you this love and that you can express this love. It's not the fullness (of love) ... but who of us loves God and loves the neighbor as he should do it? We are all on the way."

CNS notes that the cardinal stresses that his proposal is intended only for a small number of people -- serious Catholics -- who would be admitted to Communion only after following a "penitential path" for the failure of their sacramental marriages. The Cardinal notes that when a marriage breaks up, neither partner, more often than not, is totally innocent. And like Pope Francis, who said “Who am I to judge,” the Cardinal says, “It's difficult to judge here."

Cardinal Kasper knows his views are not shared by all Cardinals. Indeed, four important cardinals -- including the Vatican's doctrinal and finance chiefs and the head of its highest court -- recently have published essays arguing against the cardinal's proposal.

So who is right? A Pope who asks, “Who am I to judge?” Or churchmen who believe it is their duty to judge, and to bar people they judge to be sinners from taking the Eucharist?

Who is more Christ-like? Did Christ ever bar any sinner from coming to him? Didn’t Christ say nobody can come to him unless the Father wills it, and that he would reject no one whom the Father had sent? It seems to me that if Christ is the judge of the living and the dead, the Pope is right when he asks, “Who am I to judge?”

Posted Online:  Nov. 19, 2014 1:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

Understanding Limits of Executive Orders

There is no constitutional provision that explicitly permits the president to make executive orders. Originally, executive orders were issued to instruct and direct officers of the executive department as to their duties. Over the years, their use has expanded. Nevertheless, to be constitutional, a presidential executive order must still find support either in a grant of power to the president by the Constitution, or in a congressional grant of power to the president by a law enacted by Congress.

As noted, the Constitution does not specifically say that the President has power to make Executive Orders. It does, however, provide that the president is commander-in-chief of the U.S. Army and Navy. Implied within his power as commander-in-chief is the power to direct the Army and Navy. When he sends troops into battle, for example, he does that by an executive order which is a presidential directive.

Some executive orders may be relatively minor as in the case of President Lincoln calling for the observance of a day of Thanksgiving, or of tremendous significance such as Mr. Lincoln’s Emancipation Proclamation, which was entered by President Lincoln acting as commander-in-chief as a war (rebellion suppression) measure. Executive orders, properly entered under the president’s constitutional authority, or under a grant of authority pursuant to congressional law(s), have the force of law. But they are not laws.

In 1950, the U.S. was involved in a “police action” against North Korea. When the steel workers threatened a nationwide strike, which President Truman believed would hurt the war effort, Mr. Truman decided to seize (“federalize”) steel production facilities to keep them operating with management and workers in place to run the plants, but under federal direction.

Mr. Truman argued to the Supreme Court that he acted under the president’s “inherent authority in response to a National Emergency.” That lead to the U.S. Supreme Court’s holding in Youngstown Sheet & Tube Co. v. Sawyer, which is regarded as the leading case on the president’s use of executive orrders.  The concurring opinion therein, written by Justice Robert Jackson, which has become the most respected of the opinions rendered therein, states

“1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all [the Constitutional Authority] that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said ...  to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

“2. 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. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.

“3. 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. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.  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.

When Congress passed the Affordable Care Act, it said that  the employer mandate shall take effect on Jan. 1, 2014. The president’s action extending (amending) that date is “incompatible with the expressed will of Congress, and his power is at its lowest ebb” -- unless the act grants the president that power.

The same is true when Congress passes a law that establishes a prescribed mode for immigration.  Unless an act of Congress grants the president power to establish a different mode, the president has no power to prescribe an alternative mode.

The same president who can override such laws, can override the will of the voters at the next election and decide that he shall remain in office because he thinks what he is doing will help families across the country. Or because it’s good for workers, employers and the middle class.



Posted Online:  Nov. 15, 2014 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea

 

Who Makes Laws, Congress or the President?

How would you like living in a United States where the laws are made by one man. Where laws are made by executive order? This isn’t a mere hypothetical. President Obama has announced that this is how he means to proceed.

On July 30, the U.S. House authorized Speaker John Boehner to sue President Obama over his 2013 decision to “rewrite” the Affordable Care Act  (Obamacare)  to postpone for one year (from Jan. 1, 2014) the employer mandate. The ACA requires that all firms with more than 50 full-time-equivalent employees -- defined as 120 hours per month -- offer government-certified health coverage to their workers, or pay a significant fine.

The president was derisive in his response to the speaker’s suit (whitehouse.gov/photos-and-video/video/2014/07/31/president-signs-fair-pay-and-safe-workplace-executive-order#transcript):

“[L]ast night ...  [t]hey got together in the House of Representatives. The Republicans, and voted to sue me for taking the actions that we are doing to help families.

“One of the main objections that’s the basis of this suit is us making a temporary modification to the health care law that they said needed to be modified.

“So they criticized a provision; we modify it to make it easier for business to transition; and that’s the basis for their suit.

“But it’s not going to stop me from doing what I think needs to be done in order to help families all across this country.

“The executive order I’ll sign in a few minutes is one that’s good for workers, it’s good for responsible employers, and it’s good for the middle class.

“We need a Congress that’s willing to get things done.  We don’t have that right now.  In the meantime, I’m going to do whatever I can, wherever I can, whenever I can, to keep this country’s promise alive for more and more of the American people.”

So, where in the Constitution is the president granted power to make, amend, suspend the effective date, repeal or refuse to enforce a law? It is one thing to say Congress needs to amend or repeal a law; it is an entirely different thing to say the president should take the law into his own hands.
The Constitution states, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

If all legislative power is vested in Congress, then Congress alone has power to enact laws and to amend or repeal laws. If all legislative power is vested in Congress, then no legislative power is vested in the president (save the power to suggest legislation and veto bills subject to override).
Governing by executive order “is governing by decree.” Tyrants rule by decree, not American presidents.

Once Congress passes a law the president has no power to amend it, suspend its effective date or repeal it, unless he is specifically granted that power by Congress by law. Indeed, his oath is:  “I do solemnly swear ... that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
His Article II  “Constitutional duty” is to “take care that the laws be faithfully executed;” not to rule by decree for the benefit of the “workers,” for “responsible employers,” or for any class (whether middle, upper or lower).

I have no confidence Speaker Boehner’s lawsuit will succeed. The House has a clear, certain Constitutional remedy short of impeachment to control a lawless president. It controls the purse; it can refuse to fund the president’s alleged illegalities. The fact that the House lacks guts to defund, doesn’t justify its lawsuit. The real victim of presidential lawlessness isn’t the House. It’s the American people. They pay. And only a handful of citizens have the resources, even if indeed they have the standing,  to sue the president. With a feckless House and Senate, President Obama can rule by decree -- as if the Constitution didn’t exist.

So does the President have power to make executive orders? Of course, he does. Since the beginning of the republic, presidents have made executive orders to govern the conduct of officers and employees within the executive department.

President Truman, as commander-in-chief, ordered the end of segregation within our Armed Forces. President Lincoln, as a war measure, issued the Emancipation Proclamation.

But it is one thing to make executive orders to govern the conduct of people in the executive department; it is an entirely different thing to make executive orders to govern the conduct of the American people.

So when can the president ever make executive orders with the force of law to govern the American people? See my next op-ed.


Posted Online:  Nov. 8, 2014 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea