Lawless — A New Book’s Title Perfectly Describes Obama And His Minions
A big part of Barack Obama’s campaign for the White House in 2007-08 was that he would be the exact opposite of George W. Bush. In particular, Obama attacked Bush for aggrandizing the power of the presidency. During the campaign, Obama told supporters,
“The biggest problems we’re facing right now have to do with George Bush’s trying to bring more and more power into the executive branch and not go through Congress. And that’s what I intend to reverse when I’m president.”
It’s a good thing for Obama that campaign promises are not legally binding. As George Mason University law professor David Bernstein shows in his new book Lawless, Obama did not just fail to reverse the Bush trend of centralizing power — he and his political allies have made it much worse.
Bernstein forthrightly declares,
“There has never been a greater gap between a presidential candidate’s constitutional promises and his actions in the Oval Office.”
We have suffered through a lot of imperial presidencies before, but I think Bernstein is right. On respecting the rule of law, Obama is the worst ever.
The book covers many of the instances where Obama and/or his subordinates refused to let the law get in the way of doing whatever they wanted.
Arguably, the worst of Obama’s rule of law violations was his decision to engage in military action intended to bring down the Gaddafi regime in Libya. I say that for two reasons. First, that order was exactly the kind of military adventurism that Obama had so strongly condemned in his predecessor, and second, when he was called on it by House Speaker John Boehner (specifically, his obligation to consult with Congress and end hostilities after 60 days unless given congressional approval), he never even deigned to reply.
To assist the factions trying to oust Col. Gaddafi, Obama ordered a bombing campaign against government military targets. But what was the legal justification for that use of American forces? The 1973 War Powers Resolution, passed as a result of Nixon’s bombing of Cambodia, requires that the president obtain congressional authorization for hostilities. Instead of doing so, Obama sought legal cover to ignore the WPR.
That cover came from State Department Legal Adviser Harold Koh. Koh, long a member of the faculty at Yale Law School, once had a reputation as a fierce critic of unauthorized military interventions. But now that he was working for the Obama administration, he had a complete change of heart and defended the Libyan campaign by arguing that the extensive bombing did not constitute “hostilities” under the WPR.
Although critics from all points on the political compass scoffed at that argument, Obama had the fig leaf he needed for the sort of unilateral military intervention he would have railed against only a few years earlier. He would not let the rule of law preclude a move that he calculated would help his re-election chances.
Bernstein also covers the stunning legal maneuvers surrounding the “Affordable Care Act.” It was passed only with brazen shenanigans by Obama’s congressional allies and afterward, the president himself began acting illegally, ordering numerous changes and delays in the law. Under our Constitution, Congress alone is authorized to make and change laws; the president is only empowered to faithfully enforce them. Obama has not done so.
The conclusion of University of California law professor Zachary Price is fitting and Bernstein quotes his sharp jab that “the president, unlike English kings, lacks the authority to suspend statutes.” That’s correct, and the numerous violations of the limits on presidential power we have seen under Obamacare and elsewhere show how far we have drifted away from our constitutional structure. We are much closer to the kind of monarchical prerogative rule than any time since the Revolution against the British crown.
Lawless also examines a lot of other issues: the administration’s attacks on private property and freedom of contract, its hostility to free speech for those who disagree with Democratic positions or candidates, the way it has pushed “anti-discrimination” law to absurd lengths (e.g., the Department of Education’s demand that colleges adopt rules for dealing with allegations of sexual assault that are blatantly at odds with due process), its eagerness to use government processes to harass its opponents, Obama’s use of executive orders to enact the “American Dream Act” after Congress would not, his failed attempt at making “recess appointments when the Senate was not in recess, and more.
Can anything be done?
One very useful point Bernstein makes is that since our two party system now makes impeachment nearly impossible, the courts should take a bigger role in protecting the rule of law. Toward that end, judges should relax the “standing” rules that often keep citizens and even elected officials from challenging the constitutionality of executive branch actions.
But even if the courts become far more vigilant in holding the line against presidential lawlessness, that won’t suffice to stop future presidents from employing Obama’s “let’s see how much we can get away with” approach. The courts cannot do more than to block a particular action. They can’t prevent an imperial minded president from trying to arrogate more power to himself.
Our only real safeguard is a populace that understands the importance of the rule of law and won’t tolerate any president who abuses his office. We’re a long way from that.
Too few Americans grasp that the president – no matter his party or objectives – cannot be allowed to act as “the decider.” What we really need is a “national conversation” (as Bill Clinton said in another context) about the importance of sticking with our legal structure of divided and limited governmental powers.
Bernstein’s book can help spark that conversation. Ideally, it would begin almost immediately, during the remaining presidential candidate debates. Hearing the thoughts of the candidates about the rule of law and how they would either restore it or, conceivably, continue to undermine it, would be most enlightening.
Originally posted on Forbes.