Lawless. David E. Bernstein
separation of powers. The legislative branch (Congress) makes the law, the executive branch (the president) sees to it that the laws are faithfully executed, and the judicial branch (the courts) is charged with applying the law to particular civil and criminal cases. The president oversteps his bounds and violates the rule of law when he tries to assert a power given to another branch. This happens most often when he tries to make law himself rather than enforce laws enacted through the normal legislative process. A related violation of the rule of law occurs when the president refuses to fulfill his explicit constitutional responsibility to “faithfully execute” laws that are on the books.
The importance, and even coherence, of the concept of the rule of law came under a series of attacks in the legal academy from the left starting in the mid-1970s. First came the Critical Legal Studies movement (CLS). CLS is an intellectual descendant of the Legal Realist movement of the pre–World War II period. In its crudest version, realists argued that laws and judicial precedents are so indeterminate that they could mean whatever interpreters want them to mean. In less crude versions, legal realism meant that extralegal considerations such as the economic or class interests of judges and legal scholars affect legal interpretation far more often and to a much greater extent than legal scholars typically recognized.
Legal realism fell out favor after World War II, as it seemed nihilistic and the type of theory that gave aid and comfort to totalitarians like the Nazis and Communists by undermining the rule of law. But realism made a strong comeback in three forms in the 1970s.5 Realism’s fondness for basing legal decision-making on empirical studies rather than on legal precedent influenced the law and economics and law and society movements. Meanwhile, a radical critique of law extrapolated from legal realism found a home in the CLS movement, which was organized and promoted by young, left-wing academics.
As law professor Charles Barzun explains, CLS adherents “argued that the rule of law was both impossible in practice and, in any event, undesirable in theory.”6 The invitation for the first CLS conference held in 1977 declared that “law is an instrument of social, economic, and political domination, both in the sense of furthering the concrete interests of the dominators and in that of legitimating the existing order.”7 The more general sensibility of the movement can be summed up with the mantra, “Law is politics.” If that’s what you think of law, the concept of the rule of law obviously won’t appeal to you. And indeed, CLS advocates argued that traditionalist legal scholars were hiding behind the notion of the rule of law to disguise their political choice to defend an unjust status quo.
CLS’s attack on the rule of law informed two additional movements: radical legal feminism and critical race theory (CRT). Like CLS advocates, radical legal feminists argue that the concept of the rule of law legitimizes and reinforces injustice, particularly a status quo of male domination.8 Critical race theorists, meanwhile, believe that supposedly objective standards like the rule of law and adherence to legal precedent mask a system that supports continued white racial dominance. CRT ultimately had a very similar bottom line to CLS. “If there is any central message of CRT’s radical multiculturalism,” law professors Daniel Farber and Suzanne Sherry conclude, that message is “it’s all politics.”9
The various groups of critical scholars—whose influence peaked just when Barack Obama was attending Harvard Law School—were and are a minority even among left-leaning (that is, the vast majority of) law professors. Nevertheless, their influence has been broadly felt. First, critical theory has helped erode commitment on the legal left to freedom of speech, due process, and other core civil liberties protected by the Constitution and once considered by liberals to be essential to the rule of law.
“Crits” denigrate these rights as a throwback to atavistic “liberal” (in the philosophical sense of believing in rights against the government) individualism. As a leading “critical” scholar emphasized, CLS “is not committed at any level to liberalism.”10 Protecting rights, crits argue, is just one political choice among many, and there is no reason to privilege that choice over more pressing competing goals, such as promoting an egalitarian society.
Meanwhile, while modern progressive thinkers have not formally abandoned commitment to the rule of law, to many the concept no longer stands for such values as objectivity and consistency, for a government of laws and not men. Instead, the rule of law is taken to mean “before the government can do something we favor, we must find some not-completely-absurd interpretation of existing law that allows us to do it.” This puts some constraint on what the government can do, as the law will stretch only so far before breaking. Ultimately, however, this resembles the rule of clever and politically willful lawyers more than the rule of law as traditionally conceived.
Government officials wanting to stretch their power as far as they can without blatantly violating the law is hardly news. What is news, however, is that top Obama administration officials have seen this not as something to be ashamed of, but as a desirable way of governing; something to brag about rather than do surreptitiously. Obama behaves as if there is some inherent virtue in a president ignoring the Constitution’s separation of powers in favor of presidential decree, as if promoting progressive political ends at the expense of the rule of law is proper not simply as a desperate last resort but as a matter of principle.11 After all, Obama says, democracy is unduly “messy” and “complicated.”12
Worse yet, as George Washington University law professor Jonathan Turley writes, the Obama “administration acts as if anything a court has not expressly forbidden is permissible.”13 In many situations, no one has legal standing to challenge the president’s actions in court—which means that no judge can stop the lawbreaking.
Obama and his allies no doubt would pose the dilemma this way, in the context of the illegal measures the president has taken to prop up Obamacare: “If we can find a way to ensure that millions of Americans are not deprived of health insurance, shouldn’t we find a way to do so?” This sort of ends-justifies-the-means reasoning is understandable to the extent that it reflects a sincere desire to use the government’s resources to help needy Americans. However, it neglects the long-term damage of undermining legal restraints on the president in favor of protecting a current political agenda, however worthy that agenda seems to its advocates. “We had no choice but to seize power to help the people” is exactly the rhetoric and reasoning used to justify tyranny around the world.
Ultimately, the Obama administration’s cavalier attitude toward the rule of law can only be justified if one thinks that law is just politics by another name. If that’s what Obama and his appointees believe, perhaps the crits have won after all.
Ideology aside, another reason that President Obama has been especially aggressive in pursuing illicit initiatives is that he has been able to get away with it. Previous presidents who engaged in wrongdoing have had members of their own political party who were willing to stand up and criticize them. Many Republicans turned on Richard Nixon as the Watergate scandal unfolded. More recently, Democratic Senator Joe Lieberman strongly criticized Bill Clinton for carrying on an affair in the White House and then lying under oath about it, and John McCain strongly opposed the Bush administration’s policy of water-boarding high-level terrorist detainees.
But with Washington politics more polarized than it has been since the Civil War—in part because unlike for most of American history, the Democrats and Republicans have so clearly divided into a progressive and a conservative party, respectively—one can’t count on partisans for one side to criticize their own. And when members of the opposing party raise legitimate concerns about the legality of the president’s actions, it’s all too easy for the public to dismiss those concerns as mere partisan sniping.
High-level Democratic politicians not only have generally failed to criticize Obama administration lawlessness but also have often encouraged it. For example, in his 2014 State of the Union address, Obama promised to circumvent Congress to achieve his policy goals. Instead of defending Congress’s turf, House and Senate Democrats responded with a standing ovation.14
The traditional media establishment—newspapers like the New York Times and Washington Post, National Public Radio, and the three major TV network news operations, often referred to