Lawless. David E. Bernstein
“Living political constitutions,” in short, “must be Darwinian in structure and in practice,” not Newtonian, as the framers had designed the United States Constitution to be.34 With this, Wilson planted the seeds of “living constitutionalism”—the concept that the Constitution’s meaning is not fixed but should be adapted to the changing circumstances of the times.35
Wilson’s notion of a “living Constitution” is wholeheartedly embraced by modern progressives—and President Obama is no exception. In his campaign polemic The Audacity of Hope, then–Senator Obama wrote that the Constitution “is not a static but rather a living document, and must be read in the context of an ever-changing world.”36 And as president, he declared that “we have always understood that when times change, so must we; that fidelity to our founding principles requires new responses to new challenges.”37 Certainly, as Professor Bernstein notes in his book, Obama has occasionally expressed admiration for the Constitution and its separation of powers, as any national politician must. But in a 2001 radio interview, while he was still a state senator in Illinois, Obama voiced disappointment that the Constitution has been interpreted only as “a charter of negative liberties” and not also as a charter of positive rights that spells out what government “must do on your behalf.” He complained that the Supreme Court under Chief Justice Earl Warren—a Court that often abandoned strict adherence to the text, history, and structure of the Constitution—did not go far enough, because it “never ventured into the issues of redistribution of wealth” and “more basic issues of political and economic justice in this society.” According to Obama, the Warren Court failed to “break free from the essential constraints that were placed by the Founding Fathers in the Constitution.”38 Like Wilson, Obama clearly distrusts even the most fundamental aspects of the framers’ handiwork. Instead, he suggests that courts should contort the Constitution to mandate vast redistributions of wealth.
But even more importantly, Obama’s actions have spoken far louder than his words. What was expressed back then as mere disappointment with our constitutional design and history eventually became an all-out revolt against the Constitution, especially after Democrats lost control of Congress midway through President Obama’s first term. No longer able to enact his agenda through Congress, and unwilling to compromise, Obama began to take matters into his own hands by claiming he had the power to act when Congress would not, as though his powers were somehow enlarged the moment Congress refused to address his priorities. Veteran unemployment? “We can’t simply wait for Congress to do its job. . . . If Congress won’t act, I will.”39 Food and Drug Administration reform? “[W]e can’t wait for action on the Hill.”40 Climate change? “But if Congress won’t act soon to protect future generations, I will.”41 The economy? “But where Congress won’t act, I will.”42 Immigration? Where Obama himself used to declare that he had no authority to act—“I am not king,” he memorably observed43—Obama now declares: “[T]he American people don’t want me just standing around twiddling my thumbs and waiting for Congress to get something done.”44 And on and on and on.
President Obama has inverted our constitutional system of government. Article I of the Constitution gives Congress sole power to make laws, and Article II tasks the president with executing the laws that Congress has made. The president has no more authority to do Congress’s job (i.e., make laws) when it won’t act than a senator has to do the president’s job when he won’t act in the way we would prefer (which is often the case with this president). This separation of powers is foundational to our system of government precisely because it helps ensure liberty for all Americans. As James Madison wrote in Federalist No. 47, the concentration of executive, legislative, and judicial power “in the same hands” is “the very definition of tyranny.” So long as Madison’s maxim holds true, the separation of powers should never be discarded for ideological objectives, much less for political convenience.
Although he would never say so, President Obama’s actions suggest that he does not believe (or just does not care) in the truth Madison described. According to Obama, congressional inaction is not—and should not be—a limitation on his power to act. If anything, he sees it as a license to act. President Obama’s repeated threats to take action because of Congress’s inability or unwillingness to do so, unfortunately, bear an uncanny resemblance to Julius Caesar’s response to political gridlock. The demise of the Roman republic and the emergence of Caesar’s dictatorship were partly the result of Caesar’s frustration with the logjam known as the Roman political system. According to classicist Anthony Everitt, Caesar thought the solution to the problems of the Roman constitution “with its endless checks and balances” was “a completely new system of government,” one that made him all-powerful.45
Of course, no one seriously believes that President Obama aspires to be caesar. When his term ends, he will step aside as every president in our history has done. But President Obama’s raw assertions of power will undermine, if not transform, our constitutional order if they are not repudiated. Future presidents now have mountains of lawless precedent to call upon, should they desire to enact their own wishes contra the preferences of the American people as represented by Congress and expressed in their laws. Law professor Jonathan Turley, himself a liberal, has drawn largely the same conclusion: “We are seeing the emergence of a different model of government in our country—a model long ago rejected by the Framers.”46 “What’s emerging,” he says, “is an imperial presidency, an über-presidency . . . where the President can act unilaterally.”47 As Professor Turley witheringly observed, “the painful fact is that Barack Obama is the president that Nixon always wanted to be.”48 This should greatly alarm anyone who still believes in limited, republican government and the rule of law—even those who happen to agree with the substance of President Obama’s policies.
And this brings us back to Professor Bernstein’s book. As Obama’s presidency comes to an end, it is important that the historical record be clear about the lawlessness that has transpired. That is what Professor Bernstein’s book does, and for that, he has done the nation a great service. He chronicles in fair, but excruciating, detail the many ways the Obama administration has subverted the rule of law—the politicization of the Justice Department; the disregard of Congress in foreign affairs; the assault on property rights; the use of unaccountable “czars” to circumvent the Senate confirmation process; the targeting of politically disfavored individuals and groups (including by the IRS); and the attacks on free exercise of religion, freedom of speech, and due process of law, among numerous other injustices. Although many have openly cheered the president’s actions, while others have downplayed or ignored their significance, Professor Bernstein makes a compelling case for why those actions should be viewed for what they are: an unprecedented assault on the Constitution and the rule of law. And it is a case that future historians should not, and will not be able to, ignore. Subversion of the law is President Obama’s true legacy, and it is a legacy that could have a lasting and devastating impact on the future of our country if we let it. The only question now is: Will we?
President Barack Obama has presided over one constitutional debacle after another. Given the potentially permanent damage the Obama administration has done and continues to do to the Constitution and the rule of law, and the bad precedents that have been set for future administrations, someone needed to step up and document how and why the Obama administration has been undermining our constitutional system. So to paraphrase the great Rabbi Hillel, if not me, who, and if not now, when?
It wasn’t supposed to be this way. Obama ran for president in 2008 as a candidate who would respect the Constitution and restore the rule of law after years of perceived neglect. He told one audience, “I taught the Constitution for ten years, I believe in the Constitution, and I will obey the Constitution of the United States.”1 At another campaign appearance, he promised to adhere to the Constitution and the rule of law. “The separation of powers works. Our Constitution works,” he told the crowd.2
Respecting the separation of powers—the constitutional division of power