I’m impressed by a young Oxonian by the name of Charles C. W. Cooke, who writes for National Review and other outlets. Although Mr. Cooke may even still be in his twenties, he is wise (and conservative, but I repeat myself) beyond his years.
Here’s a piece that he published today over at NRO, on “living legislation”. By this Mr. Cooke refers to the writing of laws that are not specifically prescriptive or prohibitive in nature, but are instead mere grants of power to the Executive Branch. Combine this with the unprecedented disregard this President has for the faithful execution of the law, and you have made possible government by executive caprice: the hallmark, as Christopher Hitchens (and others) have pointed out, of tyranny.
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I don’t recall NRO or the Wall Street Journal complaining about unrestrained executive power when conservatives held the levers of power during the Bush administration. Quite the opposite: both media favored granting virtually unlimited executive authority to prosecute the “war on terror,” and the Journal repeatedly mocked those in the “anti-anti-terror lobby” who expressed Constitutional concerns.
Richard Nixon used government power to harass his political enemies. This included using the FBI to spy on his adversaries, directing the IRS to audit them, and breaking and entering into DNC headquarters and the office of Daniel Ellsberg’s psychiatrist. He then obstructed justice – including firing the special prosecutor who was investigating Watergate – to derail any prosecutions for his illegality. Three of his Attorneys General served time, as well as a dozen or so other top administration officials. This came after his VP resigned to avoid being prosecuted for bribery, and before Nixon resigned in disgrace to escape impeachment.
Ronald Reagan flagrantly violated the Boland Amendment to sell arms to Iran to fund the Contras, in a move which was as unconstitutional as it was breathtakingly bone-headed. His Secretary of State, George Schultz, strongly advised against it and told Reagan that this was an impeachable offense. This led to the indictment of the SecDef (pardoned before trial) and the convictions of the Assistant SecDef, Assistant SecState, and other high administration officials.
George Bush ignored FISA laws to conduct warrantless wiretapping. He ignored the Geneva Conventions and used torture. His deputies outed a CIA agent which led to Scooter Libby’s conviction and Dick Cheney’s subornation of perjury. He held over 700 “signing statements” specifying laws he said he would not enforce.
And President Obama has “unprecedented disregard … for the faithful execution of the law?” Really?
As compelling as all this tu quoque stuff may be, it misses the point. What distinguishes this administration is the extent to which it simply declines to enforce existing law, or enforces only those parts of existing law that suit it.
And the blame is not only with the President: Congress seems equally willing, these days, to pass intentionally vague laws that grant extraordinary latitude to the Executive. It seems that the very idea of a limited, clearly defined, comprehensible statute that becomes fixed law once enacted is rapidly becoming a thing of the past; instead we now have gigantic bills, far too large for any of the legislators who vote on them to read or understand, that effectively license the Executive to write the law himself, post facto, as he sees fit.
This is not at all — to put it mildly! — what the Founders had in mind.
I should add that this is not a partisan complaint. This is a dangerous erosion of the balance of powers that forms the very framework of our constitutional republic, and would be every bit as worrisome with either party in charge (though of course the smaller and less centralized the government, the less damage it can do.)
Anyway, it is silly to focus so narrowly on “unprecedented”. Focus on the problem itself.
The opinion piece Washington Post is both inaccurate and uninformed.
Its characterization of the Obamacare waiver for government employees is false. You can find the facts here:
http://nymag.com/daily/intelligencer/2013/08/congress-exempt-from-obamacare-or-something.html
The opinion piece is uninformed insofar as it ignores the longstanding principle of prosecutorial discretion. No executive branch enforces all laws in all instances. By your logic, Mayor Bloomberg disregarded the law because he did not immediately bring bulldozers and tanks to Zucotti Park the instant OWS protesters got there. The police disregard drug laws when they don’t arrest patrons of rock concerts and they disregard public intoxication laws by not making arrests at ballparks and football tailgate parties. If you get caught by a radar gun going 28 in 25 zone, the cop will refrain from giving you a ticket of you are white and driving a nice car. Etc., etc.
Nor does Obama differ from his predecessors. Truman tried to expropriate the steel mills until the Court stopped him. LBJ did not prosecute all of the draft dodgers. George Bush’s EPA was insouciant at best towards enforcing its mandate, and the civil rights division of his DOJ sat on its hands for eight years. No American President has deported every illegal immigrant who comes to the government’s attention. Etc., etc.
Your argument fails on two levels. First, it fails to explain how enforcement discretion under the Obama administration differs in any significant way from his predecessors. More importantly, it bypasses the breathtaking lawlessness of previous administrations in favor of hyperbole regarding actions which, if anything, were at the margins. Equating technical changes in Obamacare so employers have more time to change their computer systems to be compliant with selling arms to Iran is a proposition too absurd to be insisted upon.
You conflate, indiscriminately, a wide range of executive actions (and inactions), and indeed conflate the refusal of a president to enforce a law on Constitutional grounds with the doctrine of prosecutorial discretion.
John Yoo explains. (You might want to consider a shift from tu quoque to ad hominem argumentation here.)
In particular, the enormous list of arbitrary waivers and selective nullifications that have arisen with regard to Obamacare is hardly “at the margins”.
Furthermore, nobody’s asking that employers have more time to change their computer systems to be compliant with selling arms to Iran.
Finally, that previous administrations may have overstepped and abused their executive power makes, as I would have thought obvious, no brief for the continuation and expansion of such abuse.
Oh, John Yoo. The lawyer who told Bush that torture is A-OK provided it does not lead to death or “severe organ damage.” The perfect go-to guy when it comes to Constitutional interpretation.
No conflation here. No sir! Obama’s refusal to deport all illegal aliens is no different than Bush’s or Clinton’s refusal to do the same thing. You can’t deport them all, so you decide how to allocate your finite enforcement resources to concentrate on felons or other undesirables. Nor is it different than Bush allowing polluters to emit effluvia while the EPA showed a blind eye. These are all examples of enforcement discretion for reasons other than Constitutional legitimacy.
As for Obamacare compliance and Iran Contra: in defense of your feeble thesis, you posted a link to a WaPo piece which cited the one year delay in employer compliance as an example of Obama’s putative disregard for the law. I responded that the illegality of Iran Contra far exceeds any of the examples in the WaPo hit piece. Compare and contrast.
Chait writes:
Meanwhile, in the real world…
Ah! I see you took my advice.
You are correct that the dubious Constitutionality of previous administrations does not excuse dubious acts from subsequent administrations. However, they belie your central thesis, which is that the Obama administration has played fast and loose with the Constitution in an “unprecedented” scale and is the Worst Administration Ever.
Just to add a couple of cents here.
Who “Yoo”?
Clinton began the program now known as Rendition. Somalis were removed to that bastion of “humane captivity” – Yemen.
Glad to hear you say that; it seemed at first that you thought rather the opposite: that as long as this administration’s transgressions and arrogations weren’t “unprecedented” then nobody has any right to complain.
This is not, however, about prioritizing resources for enforcement; it is about upholding the law only in accordance to policy preference, and making it “perfectly clear” at every turn that when a contrarian Congress won’t fall in line, it will simply be ignored.
The law specifically requires that Obamacare’s employer mandate shall take effect in 2014? Hey look — not anymore, it doesn’t. We’d rather that Democrat-supporting unions jump the line in the Chrysler bankruptcy? Done. “Recess” appointments to the NLRB when the Senate is not in recess? You got a problem with that? We “can’t wait” for Congress to grant privileges to young illegal aliens? Well, then, we won’t.
If all this is hunky-dory business as usual, how would you answer John Yoo’s suggestion that “President Romney could lower tax rates simply by saying he will not use enforcement resources to prosecute anyone who refuses to pay capital-gains tax. He could repeal Obamacare simply by refusing to fine or prosecute anyone who violates it”?
Is this administration more culpable than its predecessors? At the very least, it seems unprecedentedly brash and unapologetic about its arrogation of power. But even if it is no more abusive than some previous administrations, the problem is not, as noted above, confined to the Executive Branch, but lies also with the sort of legislation Congress has got into the habit of passing.
Whether or not this is the Worst Administration Ever is completely beside the point. The question is whether this sort of thing is or is not a dangerous erosion of the Constitutional balance of power. I gather you think it isn’t.
http://www.newyorker.com/online/blogs/newsdesk/2013/07/a-useful-corner-of-the-world-a-history-of-guantanamo-base.html
That’s easy. All of President Obama’s actions are eminently defensible, while failing to collect cap gains taxes or giving a free pass to those who refuse to buy health insurance would be the height of scurrility.
The principled distinction is this: There is the spirit of a law and the letter of a law. When they conflict, the spirit of the law should prevail.
The administration had a choice regarding the employer mandate: start on January 1 before large companies had systems in place to comply, or delay the start for a year to give them time to reprogram their HR enterprise software. The obvious solution is to give companies the time they need to get things right. No executive branch is obligated to follow every jot and tittle of a complex law, and has the flexibility to make minor adjustments if they are clearly beneficial. The notion that the Obama administration would sabotage its own bill is more conservative nonsense (pardon the redundancy).
I don’t see how unions “jumped the line” in the Chrysler bankruptcy. Fiat would not buy the company without a UAW agreement. The government provided debtor-in-possession financing, so it has a voice in the process as a creditor. Getting a deal done required that all parties make concessions — bondholders took a haircut, unions agreed to layoffs and givebacks, and dealerships were closed — so I don’t see why the government overstepped its bounds.
Even if that were the case, the government has exercised extraordinary powers during extraordinary circumstances at least since Lincoln violated the Constitution to save the Union. In the worst economic crisis in eighty years, I don’t have an issue with the government changing the normal terms of bankruptcy reorganization for a systemically important industry when its demise has a strong probability of propelling the country into an irreversible economic collapse. The first obligation is to save the patient, and everything else is subordinate.
The right wing has always complained about the auto industry rescue, which is probably because conservatives hate hate hate unions and always favor capital over labor. So it’s not surprising that they would support the rights of bondholders and dismiss the rights of laborers. However, it’s instructive to compare Obama’s approach with what Bush (and his predecessors) did, which was to simply give money to the auto makers by issuing loans which were often forgiven. Obama invested capital into Chrysler and GM on the condition that all parties — including the unions — make significant concessions to create companies which can be sustainably profitable. All three auto companies are now fabulously profitable and are leading the economic recovery (along with homebuilders, banks, and energy companies). Had the auto companies gone into a hard liquidation — as conservatives urged at the time — not only would those companies (and many of their suppliers) have gone belly-up, but an economy which was contracting at a 9% annual rate would doubtless have plunged even further into the abyss. So you can carp all you want about unloved bondholders, but the benefits for the overall economy are inarguable.
The Senate was indeed in recess when Obama made recess appointments. The Senate is obligated to confirm or deny executive appointments. Republicans refused to confirm Richard Cordray to run the Consumer Protection Agency — not because they had an issue with Cordray (they didn’t), but because they didn’t like the law which established the agency. In our system of government, we have a means to change or eliminate unwanted laws. It is called “repeal.” Republicans did not have the votes to do that, so they tried to nullify the law by using the filibuster. If you are unhappy with Obama’s perceived abuses of the balance of powers, then you should be steaming mad that a minority of Senators were able to nullify existing law by abdicating their Constitutional responsibility of advice and consent.
Somehow I doubt that you are.
With the NLRB and the DC Circuit Court, Republicans refused to consider Presidential nominees because the balance of power tilted their way du to the number of Bush appointees still serving. The appellate court is especially important because the DC court is comprised of hard right judges, and it is the venue to adjudicate constitutional issues. Obama won the election, and he has the right to put his nominees in office, barring an egregious fault. He made recess appointments. In order to create a court case which would find its way to the DC appellate court, they held sham sessions of thirty seconds as a pretense that the Senate was in session. This is nonsense: the Senate is in session when Senators are in town to conduct business. Why should Obama give up his prerogative to staff his administration when his opponents have abdicated their responsibility to give an up-or-down vote (which they would lose) and instead use the fig leaf of a phony session?
Granting some classes of illegal immigrants indemnification from immigration laws is the only troubling act which you cite, as it runs counter to Congressional intent. The Obama administration has deported more illegals than any previous administration by a considerable margin, and it continues to do so. It can’t be accused of ignoring the law. What it has done is focus its finite resources on certain segments of the illegal population, and given a free pass to those who are most likely to be productive and law-abiding residents. If this is a Constitutional sin, it’s a venal sin and not a mortal sin.
My grandmother was an illegal alien. She left Russia in 1924 to escape Lenin and the pogroms. She got as far as Poland when the US sharply limited the level of immigration. She was able to get through Ellis Island by using someone else’s papers and coming in under that name. She spent her entire life terrified that she would be discovered and deported. So I view the issue of illegal immigrants differently than some others do.
The distinction here is between deviations from the spirit of a law and the letter of a law. As a general principle, executive acts which seek to nullify existing law because the executive opposes the essence of the law is a Constitutional no-no. Executive acts which modify a law to improve its effects, while keeping within the spirit of the law, is A-OK. As Charles Dickens noted, the law is (sometimes) an ass. However it need not be.
Peter, I haven’t time this morning to address each of your examples in detail. Touching briefly on just a few: the Senate, as the courts have agreed, was not in recess when the NLRB appointments were made, whether or not you consider a long-standing procedural practice to be a “sham”. The auto unions (who, just by an amazing coincidence, are monlithic Democratic supporters) were unfairly given top preference in the auto bailout, while everybody else got totally screwed. And so on.
As for your grandmother: if you don’t like some aspect of our immigration policy, there is a procedure in place for changing it. Don’t expect the rest of us to throw open the borders, and to toss out the very idea of the rule of law, on the basis of your family anecdotes and grandfilial sympathies.
The gist of your comment appears to be: actions violative of the “letter of the law” are fine, as long as they implement policies which, in your subjective opinion, are “defensible”, as opposed to “scurrilous”.
You write:
Is that so? Why, pray, are those “jots and tittles” in the law at all, if they have no compulsory power? Are they just “serving suggestions”? When a law says that this or that act of government ‘SHALL’ happen, does it really mean “we elected representatives think it would be nice if this happened, but hey, you’re the President, man! — so just do what you feel”?
May I then interpret the law in this way myself, say, at tax time? May I tell the officer who pulls me over on the Connecticut Turnpike that it would be “scurrilous” of him to prevent me from getting to Wellfleet in time for cocktails at the Wicked Oyster?
Can you remind us of where, exactly, the Constitution stipulates that a “law” passed by Congress is not actually a law as written, but is, rather, just a grab-bag of “jots and tittles” to be selected for enforcement at the caprice of the Executive?
Your argument is the same as what Mr. Obama has been saying a lot of lately: “I’m doing [x] because it’s the right thing to do.”
All fine with you, obviously, as long as one agrees that [x] is the right thing to do, and doesn’t care much about the Constitution and the rule of law. Not so hot otherwise.
One more thing. You wrote:
Yes, that’s troubling!
Good. Lord knows the previous administration was a miserable failure in this regard.
This is transparently disingenuous. Do you mean to say that if only they had the resources, they wouldn’t be giving the free pass to the rest? Obviously this is not the case; nobody believes that for a moment. “Ignoring the law” is, in fact, exactly what Mr. Obama and his administration are doing, in those cases where they feel the law conflicts with their political, ideological, and demographic interests (which are really one and the same thing).