Lawless. David E. Bernstein
how about cronyism? To get the Democratic votes he needed, the president had to cut shady deals with vacillating senators—who can forget the “Cornhusker Kickback” and “Louisiana Purchase”—and bestow favors on labor unions, the insurance industry, and other special interests. Then the improbable happened: Democratic Senator Ted Kennedy passed away and was replaced by Republican Scott Brown. As a result, the president lost his filibuster-proof majority in the Senate. Which leads us, finally, to procedural gimmickry. No longer able to pass a House-Senate compromise bill, the president instead rammed through the Senate version that had originally passed with Kennedy’s vote by abusing a legislative procedure known as “reconciliation.”13 Hardly the product of a “new politics” that Obama had promised, the president’s signature legislative achievement stands instead as a testament to all that is rotten about Washington.
Time and again, under the banner of high-sounding ideals, President Obama acts in a way completely counter to those ideals. Not only do his actions fail to match his words, but they often track in the opposite direction. This Orwellian habit is starkly displayed in the Obama administration’s approach to governmental openness and transparency. Shortly after assuming the presidency, President Obama issued a memo committing his administration “to creating an unprecedented level of openness in government.”14 In a speech that same day, the president declared that “there’s been too much secrecy in this city,” and he assured the nation that “[t]hat era is now over.”15 He has even gone so far as to claim that his administration “is the most transparent administration in history.”16 Nothing could be further from the truth. Soon after Obama publicly praised the Freedom of Information Act (FOIA) and committed his administration “not simply to live up to the letter but also the spirit of this law,”17 his White House counsel secretly instructed executive branch departments and agencies to submit—to the White House—all outside document requests that involved “White House equities.”18 This unprecedented move allowed the president to filter politically sensitive information, which of course prolonged the release of any such information to the press and public in violation of FOIA disclosure deadlines.19 Needless to say, such a maneuver is not in the spirit of FOIA, nor is it remotely in line with Obama’s verbal paeans to transparency.
Sadly, this is just the tip of the iceberg. Abusive and covert behavior has proven to be the rule, rather than the exception, in this administration. But don’t take it from me. Listen to some of the president’s most lavish supporters—the media. According to the San Francisco Chronicle, the president “had a decidedly fraught relationship with media scrutiny” from the beginning of his first term.20 It would only go downhill from there. By the end of four years, one Atlantic writer had seen enough:
Obama’s first term has in fact been rife with just the sort of opacity that breeds corruption, obscures misdeeds, and undermines public trust in government. Far from being praiseworthy, the prevailing executive-branch attitude toward secrecy is an abomination, as is evident from even a cursory look at its real-world manifestations. . . . Contrary to its claims, the Obama Administration just may be the least transparent in American history.21
The situation did not improve after the president’s reelection. Over halfway through Obama’s second term, a Washington Post blog documented how this administration has (1) fought court battles to avoid disclosing White House visitors; (2) “simply ignor[ed]” the federal open meetings law; (3) withheld secret legal memos, including one saying the CIA could kill US citizens affiliated with terrorists; (4) “aggressively” utilized the “state secrets privilege”; and (5) uncompromisingly attacked whistleblowers and “prosecuted more leakers under the Espionage Act than all other administrations combined.”22 So much for President Obama’s promise of “unprecedented openness” and “transparency.”
So what does any of this have to do with Professor David Bernstein’s excellent book? Well, as bad as the foregoing bait and switches are, they pale in comparison to the Obama administration’s lawlessness. Rather than remain within constitutional boundaries, President Obama has defiantly flouted them. More so than any other administration in our country’s history, his has trampled roughshod over our defining ideal, the rule of law. And he has done so in exactly the same way as was done in the previous examples: essentially promising the moon, only to confiscate the citizenry’s moon pies. On his first day in office, Obama assured the public that the rule of law would be a “touchstone[ ] of this presidency.”23 But this promise has proven every bit as illusory as the other promises he has made.
President Obama rarely lets the law stand in the way of his designs—almost always putting ideology above fidelity to the law. As a consequence, the list of his usurpations runs long.24 In an ironic turn, for example, the Obama administration has blatantly violated Obamacare’s clear statutory text on numerous occasions to avoid the political consequences of actually enforcing the law. This was Obama’s signature piece of legislation, and yet even he refused to abide by its legal requirements. The Obama administration has also refused to faithfully enforce the nation’s immigration laws. Even though Congress had repeatedly rejected legislation that would offer amnesty to certain children of illegal immigrants who were illegally brought to the United States at a young age, Obama nevertheless implemented parts of this DREAM Act by executive fiat. A couple of years later, the president went even further, attempting to extend lawful presence and work authorization—essentially counterfeiting immigration papers contrary to federal statute—to nearly five million more illegal immigrants. He did all of this without a shred of legal authority.25
There are countless other, lesser known, but equally pernicious, usurpations. The Obama Justice Department, for instance, categorically refuses to prosecute certain drug offenses because the administration disagrees with the sentences that the law requires. The Obama administration has essentially gutted President Clinton’s 1996 welfare reform law by waiving—again, without legal authority—the work requirements that are the centerpiece of the law.26 And on a matter closer to home for me, the president defied the Constitution by making numerous “recess” appointments to the National Labor Relations Board, even though the Senate was not in recess. So egregious was the president’s power grab that even the Supreme Court unanimously held that the president had violated the Constitution.27 These examples barely scratch the surface of Obama’s lawlessness, as Professor Bernstein exhaustively details in his book.
But none of this should have been all that surprising. President Obama and the officials who populate his administration are self-styled progressives, and American progressives have long viewed the Constitution as something to be overcome, not something to be followed faithfully. To progressives, the “separation of powers” and “checks and balances”—concepts designed to protect the natural rights of the people—are hopelessly outmoded ideas that impede the ability of “enlightened” government elites to fix modern problems. As Professor Ronald Pestritto of Hillsdale College puts it, the first progressives “sought to enlarge vastly the scope of the national government for the purpose of responding to a set of economic and social conditions that, it was contended, could not have been envisioned during the founding era, and for which the Founders’ limited, constitutional government was inadequate.”28 They, therefore, “took aim both at the Constitution, where the separation of powers inhibited the kind of activist central government that would be essential to implementing the Progressive policy agenda, and at the Declaration of Independence,” with its embrace of natural rights, “which the Progressives rightly understood as setting the purpose for the Constitution itself.”29
Woodrow Wilson, who was one of the earliest theoreticians and practitioners of progressive politics, voiced all of these themes. Of the Constitution, Wilson wrote that it “is not honored by blind worship” and that a “fearless criticism” of our constitutional system was the first step necessary for “emancipation” from that system.30 For Wilson, self-government should be a “straightforward thing of simple method, single, unstinted power, and clear responsibility.”31 Checks and balances were detrimental to that end: “No living thing can have its organs offset against each other as checks, and live,” he wrote.32 “Government,”