Lawless. David E. Bernstein
failure to work with the GOP and added, “Well, the reality is, if you wanna govern in this country, you have to deal with people you don’t like.”29 But if Obama really believes that congressional Republicans are extremists who are unwilling to cooperate with him even when they know it would be “the right thing for the country,” it’s not surprising that he prefers to try govern on his own.
And in fact, the Obama administration’s defenders blame House Republicans’ purported extremism for the president’s failure to work with them. Yet the Republican leadership is no more conservative today than it was in the mid-1990s, when Bill Clinton found a way to work with the likes of Tom DeLay on major issues like welfare reform. Besides, in the American constitutional system, even blatant obstructionism from Congress does not give the president any additional authority. Given the separation of powers, a large risk of gridlock is built into the Constitution. As Professor Jonathan Turley notes, there has been bitter partisan division in Washington in the past, but no one thought that this somehow gave the president power to circumvent the lawmaking process.
In short, President Obama and many of his advisors are part of an elite liberal intellectual class whose members believe that fidelity to the Constitution and the rule of law are often less important than achieving progressive political ends. Obama came into office with a huge congressional majority, and what he and his supporters thought was a mandate to fundamentally move American society to the progressive left. Conservatives, however, have thwarted this ambition, especially since Republicans took control of the House of Representatives in the 2010 midterm elections. These same conservatives, meanwhile, are held in contempt by elite progressives, who think they are either dumb or evil, or both, but that they are certainly extremists. Faced with the prospect of compromising with them, as Bill Clinton did when the Democrats lost the House in 1994, Obama instead chose to unilaterally pursue as many of his policy goals as possible, the Constitution and other legal restraints notwithstanding. The media, rather than calling the Obama administration on its worst tendencies, has often served as its cheerleader. As a result, the Constitution and the rule of law have suffered.
NO JUSTICE AT THE JUSTICE DEPARTMENT
THE JUSTICE DEPARTMENT, run for most of the Obama administration by the president’s friend and confidant, Attorney General Eric Holder, has enabled the Obama administration’s lawlessness. This enabling was sometimes direct. Several times the Justice Department filed briefs asking the Supreme Court to adopt outlandish legal theories that pleased important Democratic constituencies but were rejected by 9–0 votes in the Supreme Court.1 The Department also failed to cooperate with congressional investigators engaging in normal oversight of the administration’s activities—so much so that Holder was the first attorney general to be held in contempt of Congress. Holder’s behavior was sufficiently troubling that even most House Democrats declined to vote against the contempt resolution.2
Beyond that, rather than setting a good example for the rest of the administration that the rule of law trumps politics, Holder accelerated the Justice Department’s creeping politicization. Holder showed his lack of concern for legal niceties very early in the Obama administration. In April 2009, less than three months after Inauguration Day, the administration decided to push for a law that would grant Washington, D.C., an elected, voting representative in the House of Representatives. The Constitution, however, limits formal representation in Congress to the “citizens of the several states.” D.C. is designated a special federal enclave, and is not a state or part of a state and therefore may not have a voting representative in Congress.3
The Justice Department had affirmed and reaffirmed this understanding of the Constitution repeatedly over the decades through formal opinions offered by the Office of Legal Counsel, a group of White House lawyers hired to give the president sound, objective legal advice. OLC attorneys, as part of the executive branch of government, try very hard to find legal support for the president’s policies. Attorneys at Obama’s OLC nevertheless objected to the D.C. voting bill, citing OLC memos dating back decades as well as the plain text of the Constitution.
Instead of deferring to the OLC, Holder took the highly unusual step of seeking a second opinion from lawyers in the Solicitor General’s office. Holder did not ask the SG’s office if the law was constitutional, because he knew the answer would almost certainly have been a strong “no.” Instead, he asked whether the lawyers in the SG’s office would be able to defend the law in court. The SG’s office, by tradition, will defend any federal law in court, so long as the defense is not entirely frivolous. Given that very lenient standard, the SG’s office told Holder it would defend the law if passed.4 Holder then gave the president the legal green light to endorse the voting bill.
Very little was at stake. Even if the proposed law had passed, the D.C. representative’s vote would almost never have been decisive. If such a vote ever did break a tie, any law passed because of that vote would have immediately been challenged in court. A judge would then almost certainly have invalidated the law because the deciding vote was cast by someone whom the Constitution bans from voting in Congress.
In other words, the D.C. voting bill was purely symbolic, a mere sop to liberal constituency groups that have been unsuccessfully pushing for D.C. statehood and other ways of increasing the (overwhelmingly Democratic) District’s political power. Holder was nevertheless ready and willing to undermine the OLC. This suggested right at the start of the administration that its advice would be ignored and overridden whenever it might impede the administration’s desired political goals.
The OLC rebuffed the administration again when it advised the president that he could not ignore the War Powers Resolution when it resorted to military force in Libya (see chapter 3). This led Obama to appoint Virginia Seitz to run the OLC. Seitz was expected to be more likely than her predecessor to tell the president what he wanted to hear.5 The Senate confirmed Seitz in June 2011, and she soon lived up to expectations.
Seitz’s OLC issued an opinion that supported the legality of one of Obama’s most egregiously unconstitutional actions. The Constitution provides that the president may temporarily appoint someone as a “recess appointment” when the Senate is in recess. The Senate, in part due to growing partisan bitterness in Washington, has became increasingly assertive of its power to refuse to consent to high-level presidential appointments. During the Republican George W. Bush administration, Democratic Senate Majority Leader Harry Reid held so-called pro forma sessions in which every several days a senator would open the Senate and then adjourn, usually, but not always, without conducting business. The Senate was not in official recess during these sessions, and the president therefore could not make a recess appointment.
This frustrated the Bush administration, and led to discussions within the administration about whether the president could declare the pro forma sessions to be illegitimate, and the Senate to really be in recess. If so, the president would have the power to make recess appointments even though the Senate was not officially in recess. The OLC conducted some preliminary research into the issue, but the Bush administration never pursued it.
The Obama administration, as we shall see, was much more willing to push the limits of the recess appointments power. From the start it sought to use recess appointments not just to overcome Senate resistance to confirming President Obama’s nominees but also to avoid potentially embarrassing Senate confirmation hearings. For example, Obama used a recess appointment to install Donald Berwick to run the Center for Medicare Services. Given that Democrats had a large majority in the Senate, Berwick almost certainly would have won a confirmation battle.
The problem was that Berwick had praised Britain’s health care system, which is a “single-payer” system run and paid for by the government.6 A fleshing out at a confirmation hearing of Berwick’s views on the government’s proper role in health care delivery might have undermined the moderate image the administration was trying to project on health care. On December 2, 2011, Berwick