Lawless. David E. Bernstein
and private advocacy groups for exercising their First Amendment rights in opposing Obama administration policies. The administration’s investigation of the IRS’s illegal behavior, perhaps the worst domestic political scandal since Nixon’s Watergate, has been cursory at best.
Meanwhile, despite firm promises from candidate Obama that he would limit the scope of the president’s national security power, President Obama’s approach has been similar to his predecessor’s.12 National Security Agency collection of data on Americans has continued, and apparently did not trouble Obama until rogue NSA contractor Edward Snowden leaked relevant documents and caused a public uproar over the scope of the program.
So much for our first civil libertarian president. Hope sprang eternal for some, though. In 2012, Rosen admitted, “I was wrong, and the last three years have offered plenty of disappointments in the president’s record on privacy and national security.” “But,” he added, “if Obama wins a second term, I hope reelection gives him the freedom to redeem that unfulfilled promise.”13
If anything, though, from a constitutional perspective Obama’s second term has been even worse than his first. Civil libertarian and separation of powers dreams have met the continued harsh reality of the Obama administration’s rampant lawlessness. Many of us, including very smart and sophisticated observers like Rosen, fell for a rhetorical con job when Obama was running for president back in 2008. As Obama’s consistent record shows, and as this book thoroughly documents, it turns out that our constitutional law professor-in-chief and his high-level appointees simply never cared much about respecting the Constitution and the rule of law.
EVEN AS THE PARTISAN POLITICAL DIVIDE continues to widen, one thing has long united Democratic and Republican presidents—aggressively expanding presidential prerogatives at the expense of Congress. Presidents are naturally inclined to test the legal and political limits of their power. In part, this is because politicians naturally desire to get as much political power as they can. But in part, it’s because the Constitution’s original design has been upended by the evolution of American politics.
Congress, not the president, is supposed to have primary responsibility for most lawmaking. In practice, however, the public gives the president credit and assigns him blame for everything that happens under his watch. Presidents want to have as much control as possible over their political fate, even if that means illegally expanding their own authority at the expense of Congress.
Moreover, Congress has found it politically convenient to pass vague, broad laws. Those laws give the president and his underlings the authority to work out the details, providing many opportunities for abuse. Finally, the rise of the United States as the greatest military power in the world has concentrated power in the president because he is the commander-in-chief of the American military. Congress, meanwhile, has rarely tried to limit this power.
The result, since at least the Theodore Roosevelt administration in the early twentieth century, has been an ever-expanding “imperial presidency.” Congress enacted a series of reforms in the 1970s after the Watergate scandal and the Vietnam War to try to curb presidential excesses and reassert Congress’s authority. These reforms have been largely ineffective, and the president’s power has continued to grow under both Democratic and Republican presidents.1 The George W. Bush administration was especially aggressive in claiming unilateral authority over military and foreign affairs.
To some extent, then, the Obama administration has simply continued trends inherited from its predecessors. Obama, however, has asserted broad presidential prerogative across an unusually wide range of policy areas. As one liberal law professor puts it, “while Obama did not create the uber-presidency, he has pushed it to a new level of autonomy and authority.”2 Given prior expansions of presidential power, we may soon reach a tipping point where the constitutional balance of power is totally and permanently out of whack and presidents gain quasi-dictatorial powers.
When other presidents have tested the limits of their power, they have generally been responding to a major domestic or foreign crisis—the Civil War, World War I, the Great Depression, World War II, and 9/11, for example. Obama’s mantra, by contrast, has been that “we can’t wait” for Congress to act on a wide range of domestic and foreign policy items. Most of these were emergencies only in the sense that Obama was desperate to reward loyal political constituencies.3
One reason the Obama administration has been so assertive is that he’s the first president in decades who won after running openly as a dove on foreign policy and a liberal on domestic policy. When Obama was elected, progressives believed that after decades in the political wilderness their moment had finally arrived; they were going to control American politics indefinitely and use that power to permanently transform society.
Hopes for progressive hegemony were dashed by the Republicans’ stunning takeover of the House of Representatives in the 2010 election. This was widely seen as a reaction to the Obama administration’s big-government policies in general, and the Affordable Care Act in particular. Nevertheless, Obama did win two presidential elections, and he, his administration, and their supporters have been intent on institutionalizing whatever progressive policies they can. Given the decades-long liberal goal of nationalizing health care, they are especially intent on preserving Obamacare, even if it means acting illegally.
The obvious downside for progressives is that the Obama administration is creating dangerous precedents that can be used and abused by future presidents, including conservative Republican presidents. But Obama and his advisors refuse to subordinate their short-term political and ideological goals to the long-term goal of preserving the broad principles animating our legal and constitutional system. While politicians often don’t look beyond their own success or failure, it’s still surprising just how neglectful of legal norms Obama has been, especially given his campaign promises to respect the Constitution and his background teaching constitutional law for many years at the University of Chicago.
Part of the problem is that Obama faces a significant ideological barrier in keeping his campaign pledges. He and many of his administration’s top lawyers come from an intellectual tradition that is very skeptical of traditional notions of the rule of law and constitutional fidelity.
On the constitutional front, liberals and progressives have long argued that there is no objective meaning to the Constitution, that theories of interpretation focusing on the Constitution’s original, objective meaning are nonsense, and that the Constitution is a “living” document that must evolve with the times. This view sometimes seems to merge with a crass legal realism that holds that all law is politics. If so, there is little reason to value constitutional fidelity—indeed, the concept itself becomes unclear—or to adhere to a fixed understanding of particular constitutional provisions. Constitutional politics becomes reduced to plain politics, and the meaning of the Constitution becomes whatever can advance one’s political agenda.
The Obama administration’s actions also reflect long-standing progressive unease with the concept of the rule of law. The “rule of law” is maintained by following the law in ways that promote consistency and stability—and by ensuring equal treatment of parties. It requires both judges and law-enforcement officials to act impartially and without abusing their power.
The rule of law was once considered the key element of left-liberal theories of justice, but no more. Consider that the leading liberal lawyers’ organization, the American Constitution Society, proclaims that its mission is to promote the “vitality of the U.S. Constitution and the fundamental values it expresses: individual rights and liberties, genuine equality, access to justice, democracy, and the rule of law.”4 The rule of law is given no more weight than amorphous ideological goals like “genuine equality.”
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