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FOREWORD

Senator Ted Cruz

When Barack Obama first ran for president, many of his supporters, including much of the media, portrayed him as a near-messianic figure who had the potential to heal old wounds, purify our politics, and bring together a divided nation. Columnist Ezra Klein, for example, wrote (in a not-so-subtle Christological allusion) that Obama was “not the Word made flesh, but the triumph of word over flesh, over color, over despair.”¹ San Francisco Chronicle columnist Mark Morford agreed with his “spiritually advanced” friends who “identif[ied] Obama as a Lightworker, that rare kind of attuned being . . . who can actually help usher in a new way of being on the planet.” Obama, Morford wrote, was like a “philosopher[ ] and peacemaker[ ] of a very high order,” a person who speaks “not just to reason or emotion, but to the soul.”² Not to be outdone, Obama’s wife, Michelle, told campaign audiences that her husband was the one candidate who understood that “before we can work on the [nation’s] problems, we have to fix our souls.” “I am married to the only person in this race,” said Michelle Obama, “who has a chance of healing this nation.”³ To top things off, Time magazine’s post-election cover story about the new president began this way: “Some princes are born in palaces. Some are born in mangers. But a few are born in the imagination, out of scraps of history and hope.”⁴

Rather than temper the absurdly high expectations others were setting for him, Obama often doubled down by promising to usher in a higher form of politics—a statesmanship that would transcend our petty ideological divisions and cynical partisanship. While announcing his candidacy, for instance, Obama explained that he was not in the race “just to hold an office, but to gather with you to transform a nation” and to “usher in a new birth of freedom on this Earth.”⁵ Along these same lines, he promised to “not allow us to be distracted by the same politics that seeks to divide us with false charges and meaningless labels.”⁶ He not only vowed “to fundamentally change how Washington works,”⁷ but he also declared that he would “fundamentally transform[ ]” the entire United States.⁸ When he won the Democratic nomination, he grandiosely declared that “generations from now, we will be able to look back and tell our children that . . . this was the moment when the rise of the oceans began to slow and our planet began to heal.”⁹ And in his first inaugural address, Obama proclaimed “an end to the petty grievances and false promises, the recriminations and worn-out dogmas that for far too long have strangled our politics.”¹⁰

Looking back on these extravagant claims, one cannot escape the sense that a fraud has been perpetrated on the American people. President Obama has transformed America—but not in the way he advertised. With the enactment of “Obamacare,” he transformed the nation’s healthcare system (for the worse). With the passage of Dodd-Frank, he transformed the nation’s financial regulatory regime (for the worse). And by appeasing Cuba and Iran—the latter openly calling for “Death to America” and “Death to Israel”—he transformed the nation’s foreign policy (for the worse). But in the midst of these transformations, it became abundantly clear that Obama never had any intention of transcending ideology, bridging the partisan divide, and elevating our discourse. In many ways, he has made our politics even more corrosive. Instead of “fundamentally chang[ing] how Washington works,” the president has been all too willing to engage in outright deceit, rank partisanship, cronyism, and procedural gimmickry to enact his agenda.

Obamacare is the perfect example. There’s no question that Obamacare was built on outright deceit. As the bill worked its way through the legislative process, the president traveled the country trying to sell it to the American people. Most infamously, he promised over and over again, “If you like your health care plan, you can keep it.”¹¹ This claim, necessary to curry what little public support the bill was able to achieve, was a blatant falsehood. As for bipartisanship, the president could not garner a single Republican vote for his sweeping and constitutionally flawed healthcare proposal. But instead of enacting a more modest reform that could earn bipartisan support, he pressed forward, taunting Republicans all along the way. (“The election’s over,” he once chided Senator John McCain in response to McCain’s protests about the clandestine nature of the bill’s development.¹²) And how about cronyism? To get the Democratic votes he needed, the president had to cut shady deals with vacillating senators—who can forget the “Cornhusker Kickback” and “Louisiana Purchase”—and bestow favors on labor unions, the insurance industry, and other special interests. Then the improbable happened: Democratic Senator Ted Kennedy passed away and was replaced by Republican Scott Brown. As a result, the president lost his filibuster-proof majority in the Senate. Which leads us, finally, to procedural gimmickry. No longer able to pass a House-Senate compromise bill, the president instead rammed through the Senate version that had originally passed with Kennedy’s vote by abusing a legislative procedure known as “reconciliation.”¹³ Hardly the product of a “new politics” that Obama had promised, the president’s signature legislative achievement stands instead as a testament to all that is rotten about Washington.

Time and again, under the banner of high-sounding ideals, President Obama acts in a way completely counter to those ideals. Not only do his actions fail to match his words, but they often track in the opposite direction. This Orwellian habit is starkly displayed in the Obama administration’s approach to governmental openness and transparency. Shortly after assuming the presidency, President Obama issued a memo committing his administration “to creating an unprecedented level of openness in government.”¹⁴ In a speech that same day, the president declared that “there’s been too much secrecy in this city,” and he assured the nation that “[t]hat era is now over.”¹⁵ He has even gone so far as to claim that his administration “is the most transparent administration in history.”¹⁶ Nothing could be further from the truth. Soon after Obama publicly praised the Freedom of Information Act (FOIA) and committed his administration “not simply to live up to the letter but also the spirit of this law,”¹⁷ his White House counsel secretly instructed executive branch departments and agencies to submit—to the White House—all outside document requests that involved “White House equities.”¹⁸ This unprecedented move allowed the president to filter politically sensitive information, which of course prolonged the release of any such information to the press and public in violation of FOIA disclosure deadlines.¹⁹ Needless to say, such a maneuver is not in the spirit of FOIA, nor is it remotely in line with Obama’s verbal paeans to transparency.

Sadly, this is just the tip of the iceberg. Abusive and covert behavior has proven to be the rule, rather than the exception, in this administration. But don’t take it from me. Listen to some of the president’s most lavish supporters—the media. According to the San Francisco Chronicle, the president “had a decidedly fraught relationship with media scrutiny” from the beginning of his first term.²⁰ It would only go downhill from there. By the end of four years, one Atlantic writer had seen enough:

Obama’s first term has in fact been rife with just the sort of opacity that breeds corruption, obscures misdeeds, and undermines public trust in government. Far from being praiseworthy, the prevailing executive-branch attitude toward secrecy is an abomination, as is evident from even a cursory look at its real-world manifestations. . . . Contrary to its claims, the Obama Administration just may be the least transparent in American history.²¹

The situation did not improve after the president’s reelection. Over halfway through Obama’s second term, a Washington Post blog documented how this administration has (1) fought court battles to avoid disclosing White House visitors; (2) “simply ignor[ed]” the federal open meetings law; (3) withheld secret legal memos, including one saying the CIA could kill US citizens affiliated with terrorists; (4) “aggressively” utilized the “state secrets privilege”; and (5) uncompromisingly attacked whistleblowers and “prosecuted more leakers under the Espionage Act than all other administrations combined.”²² So much for President Obama’s promise of “unprecedented openness” and “transparency.”

So what does any of this have to do with Professor David Bernstein’s excellent book? Well, as bad as the foregoing bait and switches are, they pale in comparison to the Obama administration’s lawlessness. Rather than remain within constitutional boundaries, President Obama has defiantly flouted them. More so than any other administration in our country’s history, his has trampled roughshod over our defining ideal, the rule of law. And he has done so in exactly the same way as was done in the previous examples: essentially promising the moon, only to confiscate the citizenry’s moon pies. On his first day in office, Obama assured the public that the rule of law would be a “touchstone[ ] of this presidency.”²³ But this promise has proven every bit as illusory as the other promises he has made.

President Obama rarely lets the law stand in the way of his designs—almost always putting ideology above fidelity to the law. As a consequence, the list of his usurpations runs long.²⁴ In an ironic turn, for example, the Obama administration has blatantly violated Obamacare’s clear statutory text on numerous occasions to avoid the political consequences of actually enforcing the law. This was Obama’s signature piece of legislation, and yet even he refused to abide by its legal requirements. The Obama administration has also refused to faithfully enforce the nation’s immigration laws. Even though Congress had repeatedly rejected legislation that would offer amnesty to certain children of illegal immigrants who were illegally brought to the United States at a young age, Obama nevertheless implemented parts of this DREAM Act by executive fiat. A couple of years later, the president went even further, attempting to extend lawful presence and work authorization—essentially counterfeiting immigration papers contrary to federal statute—to nearly five million more illegal immigrants. He did all of this without a shred of legal authority.²⁵

There are countless other, lesser known, but equally pernicious, usurpations. The Obama Justice Department, for instance, categorically refuses to prosecute certain drug offenses because the administration disagrees with the sentences that the law requires. The Obama administration has essentially gutted President Clinton’s 1996 welfare reform law by waiving—again, without legal authority—the work requirements that are the centerpiece of the law.²⁶ And on a matter closer to home for me, the president defied the Constitution by making numerous “recess” appointments to the National Labor Relations Board, even though the Senate was not in recess. So egregious was the president’s power grab that even the Supreme Court unanimously held that the president had violated the Constitution.²⁷ These examples barely scratch the surface of Obama’s lawlessness, as Professor Bernstein exhaustively details in his book.

But none of this should have been all that surprising. President Obama and the officials who populate his administration are self-styled progressives, and American progressives have long viewed the Constitution as something to be overcome, not something to be followed faithfully. To progressives, the “separation of powers” and “checks and balances”—concepts designed to protect the natural rights of the people—are hopelessly outmoded ideas that impede the ability of “enlightened” government elites to fix modern problems. As Professor Ronald Pestritto of Hillsdale College puts it, the first progressives “sought to enlarge vastly the scope of the national government for the purpose of responding to a set of economic and social conditions that, it was contended, could not have been envisioned during the founding era, and for which the Founders’ limited, constitutional government was inadequate.”²⁸ They, therefore, “took aim both at the Constitution, where the separation of powers inhibited the kind of activist central government that would be essential to implementing the Progressive policy agenda, and at the Declaration of Independence,” with its embrace of natural rights, “which the Progressives rightly understood as setting the purpose for the Constitution itself.”²⁹

Woodrow Wilson, who was one of the earliest theoreticians and practitioners of progressive politics, voiced all of these themes. Of the Constitution, Wilson wrote that it “is not honored by blind worship” and that a “fearless criticism” of our constitutional system was the first step necessary for “emancipation” from that system.³⁰ For Wilson, self-government should be a “straightforward thing of simple method, single, unstinted power, and clear responsibility.”³¹ Checks and balances were detrimental to that end: “No living thing can have its organs offset against each other as checks, and live,” he wrote.³² “Government,” according to Wilson, “is not a machine, but a living thing,” and “[i]t is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life.”³³ “Living political constitutions,” in short, “must be Darwinian in structure and in practice,” not Newtonian, as the framers had designed the United States Constitution to be.³⁴ With this, Wilson planted the seeds of “living constitutionalism”—the concept that the Constitution’s meaning is not fixed but should be adapted to the changing circumstances of the times.³⁵

Wilson’s notion of a “living Constitution” is wholeheartedly embraced by modern progressives—and President Obama is no exception. In his campaign polemic The Audacity of Hope, then–Senator Obama wrote that the Constitution “is not a static but rather a living document, and must be read in the context of an ever-changing world.”³⁶ And as president, he declared that “we have always understood that when times change, so must we; that fidelity to our founding principles requires new responses to new challenges.”³⁷ Certainly, as Professor Bernstein notes in his book, Obama has occasionally expressed admiration for the Constitution and its separation of powers, as any national politician must. But in a 2001 radio interview, while he was still a state senator in Illinois, Obama voiced disappointment that the Constitution has been interpreted only as “a charter of negative liberties” and not also as a charter of positive rights that spells out what government “must do on your behalf.” He complained that the Supreme Court under Chief Justice Earl Warren—a Court that often abandoned strict adherence to the text, history, and structure of the Constitution—did not go far enough, because it “never ventured into the issues of redistribution of wealth” and “more basic issues of political and economic justice in this society.” According to Obama, the Warren Court failed to “break free from the essential constraints that were placed by the Founding Fathers in the Constitution.”³⁸ Like Wilson, Obama clearly distrusts even the most fundamental aspects of the framers’ handiwork. Instead, he suggests that courts should contort the Constitution to mandate vast redistributions of wealth.

But even more importantly, Obama’s actions have spoken far louder than his words. What was expressed back then as mere disappointment with our constitutional design and history eventually became an all-out revolt against the Constitution, especially after Democrats lost control of Congress midway through President Obama’s first term. No longer able to enact his agenda through Congress, and unwilling to compromise, Obama began to take matters into his own hands by claiming he had the power to act when Congress would not, as though his powers were somehow enlarged the moment Congress refused to address his priorities. Veteran unemployment? “We can’t simply wait for Congress to do its job. . . . If Congress won’t act, I will.”³⁹ Food and Drug Administration reform? “[W]e can’t wait for action on the Hill.”⁴⁰ Climate change? “But if Congress won’t act soon to protect future generations, I will.”⁴¹ The economy? “But where Congress won’t act, I will.”⁴² Immigration? Where Obama himself used to declare that he had no authority to act—“I am not king,” he memorably observed⁴³—Obama now declares: “[T]he American people don’t want me just standing around twiddling my thumbs and waiting for Congress to get something done.”⁴⁴ And on and on and on.

President Obama has inverted our constitutional system of government. Article I of the Constitution gives Congress sole power to make laws, and Article II tasks the president with executing the laws that Congress has made. The president has no more authority to do Congress’s job (i.e., make laws) when it won’t act than a senator has to do the president’s job when he won’t act in the way we would prefer (which is often the case with this president). This separation of powers is foundational to our system of government precisely because it helps ensure liberty for all Americans. As James Madison wrote in Federalist No. 47, the concentration of executive, legislative, and judicial power “in the same hands” is “the very definition of tyranny.” So long as Madison’s maxim holds true, the separation of powers should never be discarded for ideological objectives, much less for political convenience.

Although he would never say so, President Obama’s actions suggest that he does not believe (or just does not care) in the truth Madison described. According to Obama, congressional inaction is not—and should not be—a limitation on his power to act. If anything, he sees it as a license to act. President Obama’s repeated threats to take action because of Congress’s inability or unwillingness to do so, unfortunately, bear an uncanny resemblance to Julius Caesar’s response to political gridlock. The demise of the Roman republic and the emergence of Caesar’s dictatorship were partly the result of Caesar’s frustration with the logjam known as the Roman political system. According to classicist Anthony Everitt, Caesar thought the solution to the problems of the Roman constitution “with its endless checks and balances” was “a completely new system of government,” one that made him all-powerful.⁴⁵

Of course, no one seriously believes that President Obama aspires to be caesar. When his term ends, he will step aside as every president in our history has done. But President Obama’s raw assertions of power will undermine, if not transform, our constitutional order if they are not repudiated. Future presidents now have mountains of lawless precedent to call upon, should they desire to enact their own wishes contra the preferences of the American people as represented by Congress and expressed in their laws. Law professor Jonathan Turley, himself a liberal, has drawn largely the same conclusion: “We are seeing the emergence of a different model of government in our country—a model long ago rejected by the Framers.”⁴⁶ “What’s emerging,” he says, “is an imperial presidency, an über-presidency . . . where the President can act unilaterally.”⁴⁷ As Professor Turley witheringly observed, “the painful fact is that Barack Obama is the president that Nixon always wanted to be.”⁴⁸ This should greatly alarm anyone who still believes in limited, republican government and the rule of law—even those who happen to agree with the substance of President Obama’s policies.

And this brings us back to Professor Bernstein’s book. As Obama’s presidency comes to an end, it is important that the historical record be clear about the lawlessness that has transpired. That is what Professor Bernstein’s book does, and for that, he has done the nation a great service. He chronicles in fair, but excruciating, detail the many ways the Obama administration has subverted the rule of law—the politicization of the Justice Department; the disregard of Congress in foreign affairs; the assault on property rights; the use of unaccountable “czars” to circumvent the Senate confirmation process; the targeting of politically disfavored individuals and groups (including by the IRS); and the attacks on free exercise of religion, freedom of speech, and due process of law, among numerous other injustices. Although many have openly cheered the president’s actions, while others have downplayed or ignored their significance, Professor Bernstein makes a compelling case for why those actions should be viewed for what they are: an unprecedented assault on the Constitution and the rule of law. And it is a case that future historians should not, and will not be able to, ignore. Subversion of the law is President Obama’s true legacy, and it is a legacy that could have a lasting and devastating impact on the future of our country if we let it. The only question now is: Will we?