Читать книгу Lawless - David E. Bernstein - Страница 7

INTRODUCTION

President Barack Obama has presided over one constitutional debacle after another. Given the potentially permanent damage the Obama administration has done and continues to do to the Constitution and the rule of law, and the bad precedents that have been set for future administrations, someone needed to step up and document how and why the Obama administration has been undermining our constitutional system. So to paraphrase the great Rabbi Hillel, if not me, who, and if not now, when?

It wasn’t supposed to be this way. Obama ran for president in 2008 as a candidate who would respect the Constitution and restore the rule of law after years of perceived neglect. He told one audience, “I taught the Constitution for ten years, I believe in the Constitution, and I will obey the Constitution of the United States.”¹ At another campaign appearance, he promised to adhere to the Constitution and the rule of law. “The separation of powers works. Our Constitution works,” he told the crowd.²

Respecting the separation of powers—the constitutional division of power among the president’s executive branch, Congress, and the courts—was a theme candidate Obama returned to again and again. “The biggest problems that we’re facing right now,” he explained, “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.”³

Many voters were sure they could rely on Obama to fulfill these promises. Obama seemed to embody a thread in the tradition of American legal liberalism that respects civil liberties and the legal process, and tries to limit the president’s power to undertake mischief behind Congress’s back. Plus, Obama used to teach constitutional law at the University of Chicago, reinforcing the perception that he respected the Constitution. Even many conservative lawyers believed that Obama would take his constitutional responsibilities seriously and respect the rule of law.

My liberal constitutional law professor colleagues, meanwhile, were positively giddy at the prospect of an Obama presidency. George Washington University professor Jeffrey Rosen predicted in early 2008 that if Barack Obama were to become president, “he would be, among other things, our first civil libertarian president.”⁴ Rosen even worried that an Obama administration might become paralyzed by Obama’s fear that taking bold but necessary actions might violate the Constitution.⁵

Enthusiasm among liberal civil libertarians only grew when Obama won the election. On Inauguration Day in January 2009, lawyers representing terrorism suspects being held as prisoners of war without trial, a product of one of George W. Bush’s most controversial exercises of presidential power, “formed a boisterous conga line.” Their expectations of Obama were clear: “Rule of law, baby!” they chanted.⁶

To borrow a phrase from Wall Street, up on rumor, down on fact. There has never been a greater gap between a presidential candidate’s constitutional promises and his actions in the Oval Office. Instead of rolling back presidential power, President Obama has often bragged about ignoring Congress and pursuing actions of questionable legality on his own because Congress refused to rubber-stamp his initiatives.

Obama’s defense of these actions has not been some well-developed-but-debatable theory of presidential power. Rather, Obama has consistently relied on the mere assertion that “we can’t wait” for Congress to legislate the way he wants it to. For example, Obama told a Las Vegas audience in October 2011, “We can’t wait for an increasingly dysfunctional Congress to do its job. Where they won’t act, I will.”⁷ In July 2013, he expanded the genre, exclaiming that not just the American people, but the world “can’t wait for Congress to get its act together.”⁸

In February 2014, Obama promised that “wherever I can take steps to expand opportunity, to help working families, that’s what I’m going to do with or without Congress. I want to work with them, but I can’t wait for them.”⁹ Later that year, when Republicans in Congress began strategizing about how to challenge Obama’s illegal actions in court, Obama proclaimed, “Middle-class families can’t wait for Republicans in Congress to do stuff.” This sort of rhetoric became so common that the president began referring to his “We Can’t Wait announcements.”¹⁰

And it wasn’t mere rhetorical flourish. Consider some of President Obama’s initiatives that bypass Congress, exactly what candidate Obama swore not to do. Among other things, President Obama

has delayed, modified, and ignored various provisions of the Affordable Care Act (“Obamacare”) with barely a pretense of the legal authority to do so;

first launched military action in Libya without congressional approval and then violated the War Powers Resolution, with the absurd rationale that bombing Libya was not “hostilities” under the law;

used his recess appointments power when the Senate was not, in fact, in recess, as the Constitution requires;

granted indefinite amnesty and work permits to hundreds of thousands of illegal aliens;

violated and undermined federal bankruptcy law to benefit the autoworkers’ union and to the detriment of bondholders who had priority under the law;

appointed high-level “czars” to evade the Constitution’s requirement that high-level government officials receive Senate approval; and

ignored a law requiring him to give thirty days notice to Congress before releasing prisoners from confinement in Guantanamo Bay, Cuba.

These actions led to charges that, consistent with his own 2008 campaign rhetoric, by circumventing Congress President Obama was acting unconstitutionally. When asked about these accusations, he simply taunted his critics, “So sue me!”¹¹

Meanwhile, the president has allowed his underlings to run amok constitutionally. Obama appointees have

tried to impose an unconstitutional nationwide speech code on college campuses;

argued to the Supreme Court that the First Amendment’s guarantee of freedom of religion does not protect churches’ right to choose their clergy;

shown such extreme contempt for the rights of property owners that the Obama administration lost several property rights cases 9–0 in the Supreme Court;

tried to force public schools nationwide to use racial quotas in determining how and when to punish students for misbehaving; and

forced universities nationwide to strip college students accused of sexual misconduct of long-standing procedural protections meant to ensure fairness.

Perhaps worst of all, the Justice Department, charged with enforcing the nation’s laws, and already politicized and partisan under previous administrations, has become even more so.

The Obama administration has also been egregiously indifferent to freedom of speech. As of this writing, we have no direct evidence of administration involvement in the IRS’s scandalous and illegal harassment and intimidation of conservative nonprofit activist groups. We do know, however, that the scandal followed months of coordinated and unprecedented attacks by the administration and leading Democrats on private citizens and private advocacy groups for exercising their First Amendment rights in opposing Obama administration policies. The administration’s investigation of the IRS’s illegal behavior, perhaps the worst domestic political scandal since Nixon’s Watergate, has been cursory at best.

Meanwhile, despite firm promises from candidate Obama that he would limit the scope of the president’s national security power, President Obama’s approach has been similar to his predecessor’s.¹² National Security Agency collection of data on Americans has continued, and apparently did not trouble Obama until rogue NSA contractor Edward Snowden leaked relevant documents and caused a public uproar over the scope of the program.

So much for our first civil libertarian president. Hope sprang eternal for some, though. In 2012, Rosen admitted, “I was wrong, and the last three years have offered plenty of disappointments in the president’s record on privacy and national security.” “But,” he added, “if Obama wins a second term, I hope reelection gives him the freedom to redeem that unfulfilled promise.”¹³

If anything, though, from a constitutional perspective Obama’s second term has been even worse than his first. Civil libertarian and separation of powers dreams have met the continued harsh reality of the Obama administration’s rampant lawlessness. Many of us, including very smart and sophisticated observers like Rosen, fell for a rhetorical con job when Obama was running for president back in 2008. As Obama’s consistent record shows, and as this book thoroughly documents, it turns out that our constitutional law professor-in-chief and his high-level appointees simply never cared much about respecting the Constitution and the rule of law.