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Obama Failing His Constitutional Obligations -- Opinion

The following commentary comes from an independent investor or market observer as part of TheStreet's guest contributor program, which is separate from the company's news coverage. The opinions expressed are those of the author and do not represent the views of TheStreet or its management.

NEW YORK (TheStreet ) -- President Obama's intervention in the dispute between Wisconsin Republican Gov. Scott Walker and public employee unions violates his constitutional obligations to ensure representative democracy in each of the several states and abuses special privileges he enjoys as president.

Across the country, governors and state legislatures are grappling with tough budget deficits made worse by union contracts that guarantee workers more generous retirement and health care benefits than enjoyed by their private sector counterparts.

Walker faces a $3.6 billion shortfall over the biennium beginning July 1. He is seeking legislation requiring state workers, who currently contribute little or nothing to pensions, to kick in 5.8% of wages, and to pay 12.6% of the cost of health insurance. In return, he promises no layoffs -- compared to private sector workers, those are great terms.

The rub: He wants to curtail, but not eliminate, collective bargaining by state workers, and require their unions to submit to annual recertification elections. Notably, many states limit or deny state workers collective bargaining rights.

Democratic state senators in the minority have fled the state to deny the upper chamber a quorum and shut down the legislative branch of government.

President Obama, through his private political organization and the Democratic National Committee, has helped mobilize a massive influx of outside demonstrators in Madison, Wis., supporting the shutdown and frustrating the outcome of the November election, which brought Gov. Walker and Republican majorities to power.

Article IV, Section 4 of the Constitution, states: "The United States shall guarantee to every State in this Union a Republican Form of Government ..." By supporting and facilitating outside agitators in Wisconsin to extend the shutdown of the legislature, the president is failing in his constitutional obligation to ensure that voters can effect laws through the ballot box.

It is important to recognize the president is not intervening via federal authority to enforce a U.S. law or civil rights, but rather using the prestige of the presidency and personal resources to disrupt in the deliberations and lawmaking functions of a state legislature -- acting within its state and federal constitutional authority -- and indeed encouraging the shutdown of constitutional government in that state.

In the private sector, unions represent less than 8% of workers because an increasingly well-educated and professional labor force does not find them relevant, as did less educated industrial workers who dominated the non-agricultural labor force in the decades after World War II.

Public sector unions enjoy a superior relevance to their members. If a private union negotiates wages and benefits that make its employer uncompetitive, the business fails and workers lose their benefits. Government workers and their employers face no similar competitive restraints, and often organize politically to ensure their bosses -- governors and legislators -- are pro-union.

Now in Wisconsin and several other states, voters have chosen governments that would rebalance the relationship between public employers and organized labor. The reforms proffered by Gov. Walker are not as radical as laws denying collective bargaining, for example, in Virginia and several other states.

Under U.S. law, the scope of public sector workers' right to collective bargaining is the legitimate province of state legislatures, and the intercession of the president of the United States into the lawmaking functions of a state legislature is an illegitimate use of federal executive power.

Presidents enjoy a peculiar status in U.S. law. Federal courts are disinclined to adjudicate the acts of sitting presidents, fusing their private and official personality under the law.

President Clinton only faced the genuine litigation -- both criminal and civil -- from Special Prosecutor Ken Starr and other plaintiffs after his term in office was concluded. Starr likely concluded that short of high crimes and misdemeanors, which are the exclusive province of the House and Senate, presidents, as heads of state, can't be indicted.

President Obama, by acting through his private political machine, is abusing his special status. He is providing resources to aid and abet the shutdown of constitutional government in Wisconsin.

Professor Peter Morici, of the Robert H. Smith School of Business at the University of Maryland, is a recognized expert on economic policy and international economics. Prior to joining the university, he served as director of the Office of Economics at the U.S. International Trade Commission. He is the author of 18 books and monographs and has published widely in leading public policy and business journals, including the Harvard Business Review and Foreign Policy. Morici has lectured and offered executive programs at more than 100 institutions, including Columbia University, the Harvard Business School and Oxford University. His views are frequently featured on CNN, CBS, BBC, FOX, ABC, CNBC, NPR, NPB and national broadcast networks around the world.

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