The Lawless Presidency

The Lawless Presidency
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It's easy enough to read David E. Bernstein's Lawless as yet another entry in the hate-on-the-president genre of political books. It is, after all, an engagingly written, 143-page chronicle of things President Barack Obama has done wrong.

But Bernstein isn't your typical angry partisan; he's a highly respected (if unabashedly libertarian) legal scholar. And Lawless rises above Obama-bashing to provide a cautionary tale of how a commitment to the law can erode over time — and details how the system of checks and balances has fallen apart.

After eight years of George W. Bush, liberals loathed the idea of a strong executive. They placed a great deal of hope in the idea that Obama — who'd actually taught constitutional law — would prove a marked departure, adhering strictly to the rule of law and respecting the limits of the presidency. Obama himself stoked this excitement. "The biggest problems we're facing right now," he once remarked, "have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And that's what I intend to reverse when I'm president."

Bernstein's thesis is that Obama has spectacularly failed to live up to this promise — that, in fact, he has conducted an "unprecedented assault on the Constitution and the rule of law," as the book's subtitle has it. Truly proving this claim would require quantifying every president's abuses and showing Obama's to be the worst, something Bernstein thankfully does not attempt. But by looking closely at a series of specific policy areas, Bernstein demonstrates that, at the very least, Obama has done nothing to slow the trend he once decried.

Those who've followed political news and commentary over the past seven years — especially in the conservative media — will already be familiar with the basic outlines of Bernstein's critique. But it's almost overwhelming to see all of Obama's alleged misdeeds compiled in so small a space, and even those of us who follow politics for a living will find the occasional fascinating tidbit we didn't know before. Here's a very brief overview:

• As far as the War on Terror is concerned, Obama did end some Bush policies. But in many ways he has essentially followed in his predecessor's footsteps, raising the hackles of civil libertarians by increasing the use of drone strikes and continuing an NSA metadata program that was unknown to the public. To justify military action in Libya unsanctioned by Congress, the administration liberally interpreted the 1973 War Powers Resolution, even arguing that the fighting did not constitute "hostilities" under the law.

• Obama openly stated that he could not change immigration law by himself. But then he did exactly that, indefinitely postponing deportation for many in the country illegally and even offering them work permits.

• Obama's Justice Department supported statehood for the District of Columbia despite clear constitutional text barring it, refused to defend the Defense of Marriage Act in court, and dropped a Bush-era voter-intimidation case — that had basically already been won — against a Black Panther.

• And of course, there was Obamacare. Here the dubious practices began in Congress, which, following the election of Scott Brown (R., Mass.) to the Senate, had to pass the law using highly unorthodox and quite arguably unconstitutional procedures. (The constitutionality question has been appealed to the Supreme Court.) After the law passed, the administration repeatedly departed from the poorly drafted text. The most famous example is the IRS's decision to allow subsidies on exchanges established by the federal government, despite text in the law saying that subsidies are available on an "Exchange established by the State." The administration has also pushed back deadlines for implementing key provisions despite nothing in the law giving it the authority to do so.

Also covered: the administration's aggressive pushing of Common Core, its extensive use of "signing statements" and "czars," its protection of unions during the auto bailout, its attack on Boeing via the National Labor Relations Board, its IRS investigations of conservative nonprofits, its "guidance" pressuring colleges to address sexual assault through on-campus disciplinary hearings with minimal due process, its EPA's broad claims to regulatory authority, its "recess appointments" made while Congress was not officially in recess, and much more.

We can debate the legal and policy merits of each of these actions, and we can debate how much they depart from the norms established by previous administrations. After all, the executive branch does have some discretion when it comes to (for example) setting law-enforcement priorities and conducting foreign affairs, and plenty of presidents have tested the limits of their authority. But taken as a whole, Obama's behavior is certainly not that of a president trying to reverse the expansion of executive power, and even many liberal analysts have said as much, especially in the context of national security.

How and why this commitment fell apart — how Obama went from "that's what I intend to reverse" to "I've got a pen and I've got a phone" — will be an interesting question for historians in the years ahead. Were Obama's promises insincere to begin with? Does the presidency itself, with its temptations of immediate policy victory through executive action, egg on this type of overreach? Were Obama's opponents in Congress unusually obstructive?

An even more important question, though, is what happened to checks and balances and how to fix the problem. However fascinating Obama's personal journey may be, the American political system isn't supposed to rely on presidents to keep themselves in line. An expectation of presidential overreach is actually built into the system, with the courts and Congress tasked with pushing back.

The judiciary has pushed back a bit, sometimes even with 9-0 Supreme Court rulings. Often, however, it's hard to challenge executive actions in court owing to a requirement that anyone filing a lawsuit must have "standing" — basically, they must show that they have been directly harmed by the action they are trying to block. And sometimes, of course, courts fail to overturn actions because judges are politically sympathetic to the administration's goals.

Congress also has a share of the blame. Too often, Congress delegates to the executive branch a broad authority with vague boundaries, or fails to challenge the president's unlawful actions when he's of the same political party.

Bernstein has some ideas for reform. One is for courts to take a more liberal approach to the question of standing so they can review more executive decisions. Another is for both houses of Congress to "launch bipartisan investigations of the Obama administration's unconstitutional actions, with an eye toward setting ground rules for the next president, enforced by legislation whenever possible." Setting ground rules is a promising idea, but a focus on Obama's misdeeds is bound to make bipartisanship unlikely, and as Bernstein concedes, Obama probably won't sign a bill premised on the idea that future presidents shouldn't follow his example.

And of course, the next president could take on the project of reforming the office himself, for example by deferring to the White House's Office of Legal Counsel when considering actions of dubious legality, or by exercising self-restraint in the face of executive actions he or she could probably get away with. But those are promises that sound awfully familiar.

Robert VerBruggen is editor of RealClearPolicy. Twitter: @RAVerBruggen

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