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Chapter 1

WHY SO LAWLESS?

EVEN AS THE PARTISAN POLITICAL DIVIDE continues to widen, one thing has long united Democratic and Republican presidents—aggressively expanding presidential prerogatives at the expense of Congress. Presidents are naturally inclined to test the legal and political limits of their power. In part, this is because politicians naturally desire to get as much political power as they can. But in part, it’s because the Constitution’s original design has been upended by the evolution of American politics.

Congress, not the president, is supposed to have primary responsibility for most lawmaking. In practice, however, the public gives the president credit and assigns him blame for everything that happens under his watch. Presidents want to have as much control as possible over their political fate, even if that means illegally expanding their own authority at the expense of Congress.

Moreover, Congress has found it politically convenient to pass vague, broad laws. Those laws give the president and his underlings the authority to work out the details, providing many opportunities for abuse. Finally, the rise of the United States as the greatest military power in the world has concentrated power in the president because he is the commander-in-chief of the American military. Congress, meanwhile, has rarely tried to limit this power.

The result, since at least the Theodore Roosevelt administration in the early twentieth century, has been an ever-expanding “imperial presidency.” Congress enacted a series of reforms in the 1970s after the Watergate scandal and the Vietnam War to try to curb presidential excesses and reassert Congress’s authority. These reforms have been largely ineffective, and the president’s power has continued to grow under both Democratic and Republican presidents.¹ The George W. Bush administration was especially aggressive in claiming unilateral authority over military and foreign affairs.

To some extent, then, the Obama administration has simply continued trends inherited from its predecessors. Obama, however, has asserted broad presidential prerogative across an unusually wide range of policy areas. As one liberal law professor puts it, “while Obama did not create the uber-presidency, he has pushed it to a new level of autonomy and authority.”² Given prior expansions of presidential power, we may soon reach a tipping point where the constitutional balance of power is totally and permanently out of whack and presidents gain quasi-dictatorial powers.

When other presidents have tested the limits of their power, they have generally been responding to a major domestic or foreign crisis—the Civil War, World War I, the Great Depression, World War II, and 9/11, for example. Obama’s mantra, by contrast, has been that “we can’t wait” for Congress to act on a wide range of domestic and foreign policy items. Most of these were emergencies only in the sense that Obama was desperate to reward loyal political constituencies.³

One reason the Obama administration has been so assertive is that he’s the first president in decades who won after running openly as a dove on foreign policy and a liberal on domestic policy. When Obama was elected, progressives believed that after decades in the political wilderness their moment had finally arrived; they were going to control American politics indefinitely and use that power to permanently transform society.

Hopes for progressive hegemony were dashed by the Republicans’ stunning takeover of the House of Representatives in the 2010 election. This was widely seen as a reaction to the Obama administration’s big-government policies in general, and the Affordable Care Act in particular. Nevertheless, Obama did win two presidential elections, and he, his administration, and their supporters have been intent on institutionalizing whatever progressive policies they can. Given the decades-long liberal goal of nationalizing health care, they are especially intent on preserving Obamacare, even if it means acting illegally.

The obvious downside for progressives is that the Obama administration is creating dangerous precedents that can be used and abused by future presidents, including conservative Republican presidents. But Obama and his advisors refuse to subordinate their short-term political and ideological goals to the long-term goal of preserving the broad principles animating our legal and constitutional system. While politicians often don’t look beyond their own success or failure, it’s still surprising just how neglectful of legal norms Obama has been, especially given his campaign promises to respect the Constitution and his background teaching constitutional law for many years at the University of Chicago.

Part of the problem is that Obama faces a significant ideological barrier in keeping his campaign pledges. He and many of his administration’s top lawyers come from an intellectual tradition that is very skeptical of traditional notions of the rule of law and constitutional fidelity.

On the constitutional front, liberals and progressives have long argued that there is no objective meaning to the Constitution, that theories of interpretation focusing on the Constitution’s original, objective meaning are nonsense, and that the Constitution is a “living” document that must evolve with the times. This view sometimes seems to merge with a crass legal realism that holds that all law is politics. If so, there is little reason to value constitutional fidelity—indeed, the concept itself becomes unclear—or to adhere to a fixed understanding of particular constitutional provisions. Constitutional politics becomes reduced to plain politics, and the meaning of the Constitution becomes whatever can advance one’s political agenda.

The Obama administration’s actions also reflect long-standing progressive unease with the concept of the rule of law. The “rule of law” is maintained by following the law in ways that promote consistency and stability—and by ensuring equal treatment of parties. It requires both judges and law-enforcement officials to act impartially and without abusing their power.

The rule of law was once considered the key element of left-liberal theories of justice, but no more. Consider that the leading liberal lawyers’ organization, the American Constitution Society, proclaims that its mission is to promote the “vitality of the U.S. Constitution and the fundamental values it expresses: individual rights and liberties, genuine equality, access to justice, democracy, and the rule of law.”⁴ The rule of law is given no more weight than amorphous ideological goals like “genuine equality.”

A key aspect of the rule of law in the American constitutional system is the separation of powers. The legislative branch (Congress) makes the law, the executive branch (the president) sees to it that the laws are faithfully executed, and the judicial branch (the courts) is charged with applying the law to particular civil and criminal cases. The president oversteps his bounds and violates the rule of law when he tries to assert a power given to another branch. This happens most often when he tries to make law himself rather than enforce laws enacted through the normal legislative process. A related violation of the rule of law occurs when the president refuses to fulfill his explicit constitutional responsibility to “faithfully execute” laws that are on the books.

The importance, and even coherence, of the concept of the rule of law came under a series of attacks in the legal academy from the left starting in the mid-1970s. First came the Critical Legal Studies movement (CLS). CLS is an intellectual descendant of the Legal Realist movement of the pre–World War II period. In its crudest version, realists argued that laws and judicial precedents are so indeterminate that they could mean whatever interpreters want them to mean. In less crude versions, legal realism meant that extralegal considerations such as the economic or class interests of judges and legal scholars affect legal interpretation far more often and to a much greater extent than legal scholars typically recognized.

Legal realism fell out favor after World War II, as it seemed nihilistic and the type of theory that gave aid and comfort to totalitarians like the Nazis and Communists by undermining the rule of law. But realism made a strong comeback in three forms in the 1970s.⁵ Realism’s fondness for basing legal decision-making on empirical studies rather than on legal precedent influenced the law and economics and law and society movements. Meanwhile, a radical critique of law extrapolated from legal realism found a home in the CLS movement, which was organized and promoted by young, left-wing academics.

As law professor Charles Barzun explains, CLS adherents “argued that the rule of law was both impossible in practice and, in any event, undesirable in theory.”⁶ The invitation for the first CLS conference held in 1977 declared that “law is an instrument of social, economic, and political domination, both in the sense of furthering the concrete interests of the dominators and in that of legitimating the existing order.”⁷ The more general sensibility of the movement can be summed up with the mantra, “Law is politics.” If that’s what you think of law, the concept of the rule of law obviously won’t appeal to you. And indeed, CLS advocates argued that traditionalist legal scholars were hiding behind the notion of the rule of law to disguise their political choice to defend an unjust status quo.

CLS’s attack on the rule of law informed two additional movements: radical legal feminism and critical race theory (CRT). Like CLS advocates, radical legal feminists argue that the concept of the rule of law legitimizes and reinforces injustice, particularly a status quo of male domination.⁸ Critical race theorists, meanwhile, believe that supposedly objective standards like the rule of law and adherence to legal precedent mask a system that supports continued white racial dominance. CRT ultimately had a very similar bottom line to CLS. “If there is any central message of CRT’s radical multiculturalism,” law professors Daniel Farber and Suzanne Sherry conclude, that message is “it’s all politics.”⁹

The various groups of critical scholars—whose influence peaked just when Barack Obama was attending Harvard Law School—were and are a minority even among left-leaning (that is, the vast majority of) law professors. Nevertheless, their influence has been broadly felt. First, critical theory has helped erode commitment on the legal left to freedom of speech, due process, and other core civil liberties protected by the Constitution and once considered by liberals to be essential to the rule of law.

“Crits” denigrate these rights as a throwback to atavistic “liberal” (in the philosophical sense of believing in rights against the government) individualism. As a leading “critical” scholar emphasized, CLS “is not committed at any level to liberalism.”¹⁰ Protecting rights, crits argue, is just one political choice among many, and there is no reason to privilege that choice over more pressing competing goals, such as promoting an egalitarian society.

Meanwhile, while modern progressive thinkers have not formally abandoned commitment to the rule of law, to many the concept no longer stands for such values as objectivity and consistency, for a government of laws and not men. Instead, the rule of law is taken to mean “before the government can do something we favor, we must find some not-completely-absurd interpretation of existing law that allows us to do it.” This puts some constraint on what the government can do, as the law will stretch only so far before breaking. Ultimately, however, this resembles the rule of clever and politically willful lawyers more than the rule of law as traditionally conceived.

Government officials wanting to stretch their power as far as they can without blatantly violating the law is hardly news. What is news, however, is that top Obama administration officials have seen this not as something to be ashamed of, but as a desirable way of governing; something to brag about rather than do surreptitiously. Obama behaves as if there is some inherent virtue in a president ignoring the Constitution’s separation of powers in favor of presidential decree, as if promoting progressive political ends at the expense of the rule of law is proper not simply as a desperate last resort but as a matter of principle.¹¹ After all, Obama says, democracy is unduly “messy” and “complicated.”¹²

Worse yet, as George Washington University law professor Jonathan Turley writes, the Obama “administration acts as if anything a court has not expressly forbidden is permissible.”¹³ In many situations, no one has legal standing to challenge the president’s actions in court—which means that no judge can stop the lawbreaking.

Obama and his allies no doubt would pose the dilemma this way, in the context of the illegal measures the president has taken to prop up Obamacare: “If we can find a way to ensure that millions of Americans are not deprived of health insurance, shouldn’t we find a way to do so?” This sort of ends-justifies-the-means reasoning is understandable to the extent that it reflects a sincere desire to use the government’s resources to help needy Americans. However, it neglects the long-term damage of undermining legal restraints on the president in favor of protecting a current political agenda, however worthy that agenda seems to its advocates. “We had no choice but to seize power to help the people” is exactly the rhetoric and reasoning used to justify tyranny around the world.

Ultimately, the Obama administration’s cavalier attitude toward the rule of law can only be justified if one thinks that law is just politics by another name. If that’s what Obama and his appointees believe, perhaps the crits have won after all.

Ideology aside, another reason that President Obama has been especially aggressive in pursuing illicit initiatives is that he has been able to get away with it. Previous presidents who engaged in wrongdoing have had members of their own political party who were willing to stand up and criticize them. Many Republicans turned on Richard Nixon as the Watergate scandal unfolded. More recently, Democratic Senator Joe Lieberman strongly criticized Bill Clinton for carrying on an affair in the White House and then lying under oath about it, and John McCain strongly opposed the Bush administration’s policy of water-boarding high-level terrorist detainees.

But with Washington politics more polarized than it has been since the Civil War—in part because unlike for most of American history, the Democrats and Republicans have so clearly divided into a progressive and a conservative party, respectively—one can’t count on partisans for one side to criticize their own. And when members of the opposing party raise legitimate concerns about the legality of the president’s actions, it’s all too easy for the public to dismiss those concerns as mere partisan sniping.

High-level Democratic politicians not only have generally failed to criticize Obama administration lawlessness but also have often encouraged it. For example, in his 2014 State of the Union address, Obama promised to circumvent Congress to achieve his policy goals. Instead of defending Congress’s turf, House and Senate Democrats responded with a standing ovation.¹⁴

The traditional media establishment—newspapers like the New York Times and Washington Post, National Public Radio, and the three major TV network news operations, often referred to as the “mainstream media”—could have served as a check on the Obama administration’s abuses. Even though these news organizations have long been associated with a liberal political outlook, they once had a professional ethos that encouraged them to ferret out political scandals whether the source was Republican or Democratic.

The establishment media, however, has largely given up its role as an independent watchdog. Liberal reporters and news editors, i.e., the great majority of reporters and news editors, are less willing to put their ideology aside, and more willing to exhibit partisanship in favor of President Obama and the Democrats.

An important factor in the decline in nonpartisan investigative zeal among establishment reporters is that well-paying jobs in journalism have been decimated, and working in politics has emerged as an important career alternative. Given that journalists who cover national politics are overwhelmingly Democrats, working in politics means working in Democratic politics, including potentially serving in the Obama administration. Jay Carney, for example, went from being Time magazine’s Washington bureau chief to running Vice President Biden’s communications operation. He ultimately served as President Obama’s press secretary. The career-driven need to keep good relations with the White House and prominent congressional Democrats inhibits hard-hitting journalism.

Political ideology, of course, has also played a significant role in the decline of the media’s watchdog role. Reporters have long leaned liberal, but they increasingly grow up, go to college, and work in “deep blue” liberal environments where liberal Democrats are presumptively the good guys and conservative Republicans the bad. Former CBS correspondent Sharyl Attkisson was one of the few journalists not working for a conservative outlet who seriously investigated Obama administration scandals such as Benghazi, Fast and Furious, and Solyndra. For her efforts, she got a tongue-lashing from various administration officials, the silent treatment from administration spokespersons, hacking of her personal and work computers by the government, attacks from administration partisans like Media Matters, and, crucially, the contempt of her liberal CBS colleagues.¹⁵

Attkisson eventually felt “marginalized and underutilized” at CBS,¹⁶ and left. Attkisson later told CNN that some managers at CBS News are “so ideologically entrenched that . . . they have a difficult time viewing a story that may reflect negatively upon government or the administration as a story of value.”¹⁷ And if media elites are not willing to encourage their reporters to cover “sexy” Obama administration scandals, they surely are not going to express much interest in the administration’s steady and often subtle undermining of the Constitution and the rule of law.

Progressive “new media” outlets are even more partisan than establishment outlets are. As one former liberal blogger put it, “The incentives are to play ball, not to speak truth to power. More clicks. More action. Partisanship drives clicks.”¹⁸ The Obama White House has actively cultivated partisan bloggers, but White House perks come with an implicit threat: annoy the wrong people with your blogging, and you can find yourself on our enemies list—and forget about ever winning that dream job as a speechwriter for the vice president.

Obama has not gotten away scot-free, as the conservative media—from Fox News to the Wall Street Journal’s editorial pages to Rush Limbaugh and other radio talk shows to hundreds of blogs—have relentlessly followed and criticized Obama’s scandals, including the constitutional ones. But the increased prominence of conservative media may have had the perverse effect of making reporters for mainstream liberal outlets more hesitant to criticize the president. This is partly because they fear contributing to what they see as a right-wing feeding frenzy, and partly because establishment outlets may feel less responsibility to cover a story if conservative media are doing so.¹⁹

Arrogance is also a factor in the Obama administration’s lawlessness. All presidents are arrogant; no humble person gets up one morning and says to himself, “I really think I should be the leader of the free world.” Obama is no exception. In 2006, he told a staffer: “I think that I’m a better speechwriter than my speech-writers. I know more about policies on any particular issue than my policy directors. And I’ll tell you right now that I’m gonna’ think I’m a better political director than my political director.”²⁰ But the Obama administration’s arrogance is pervasive. As a leading left-wing activist told the Huffington Post’s Sam Stein: “These guys are stunningly arrogant. They really believe that their shit doesn’t smell, that they have all the answers. And that arrogance continues to hurt them.”²¹

The source of this arrogance lies, at least in part, in the attitudes of post-1970s graduates of elite universities. Past generations of elite political types derived their sense of superiority from a WASPish Old Boy Network. The Obama generation of elite political liberals, including many of the president’s top aides and appointees, believe in meritocracy. But their version of meritocracy is based not solely on demonstrated achievement, but also on where one went to college and graduate school—but only if one is on the left side of the ideological spectrum, as conservative or libertarian views mark even the most accomplished people as fools or knaves, if not both. The converse belief is that progressives are presumptively wiser and morally superior to their ideological opponents, which undermines any desire to compromise with them.

President Obama graduated from Columbia University and Harvard Law School. Many of his advisors went to similarly elite colleges and graduate schools. The political culture at these schools considered far-leftists to be within mainstream political discourse, but run-of-the-mill conservatives to be, at best, on the extremist fringe.

It’s hard to exaggerate how far skewed to the left the political environment was at Harvard Law School and other elite law schools in Obama’s day—even while most students eagerly lined up for high-paying jobs representing large corporations. As one Harvard Law School graduate, class of 1994, puts it, at Harvard “radical was mainstream and conservative was radical.”²²

I can attest to this from my years at the Yale Law School, which I attended from 1988 to 1991, exactly when Obama attended Harvard. At the time, Harvard was considered significantly less friendly to right-of-center students than was Yale. Nevertheless, a significant fraction of Yale law students actively shunned, encouraged others to shun, and sometimes tried to publicly humiliate, those classmates they deemed to be “reactionaries”—a category that included people with moderate or right-of-center political views that would be utterly mainstream almost anywhere else. Even the more fair-minded liberal students who were polite to, or even friendly with, their conservative and libertarian classmates—and Obama was very polite to his conservative classmates at Harvard²³—accepted their classmates’ hostility to non-left-wing peers as a mundane part of life at an elite Northeastern university.

Attending such institutions and then working in liberal Democratic politics inevitably gave Obama and his advisors of similar background a very slanted perspective on the “respectable” ideological spectrum. This perhaps explains how Obama, the most liberal president in decades, someone whose known intellectual influences were all on the left,²⁴ could tell supporters with a straight face, that “I’m not a particularly ideological person,”²⁵ or how biographer Chuck Todd can report that “nothing irks Mr. Obama more than the idea that he’s somehow a leftist or liberal.”²⁶ After all, at Harvard Law School, he was a moderate!

If being on the liberal left makes someone moderate, the corollary is that conservatives are extremists. Does Obama himself believe that? The evidence suggests that he does and that he is hardly the only one in his administration to feel that way. Consider Obama’s response when journalist George Stephanopoulos asked Obama in April 2008 about his ties to Bill Ayers. Ayers is a far leftist who was involved in several domestic terrorist bombings in the 1970s. He told the New York Times in 2001, “I don’t regret setting bombs, I feel we didn’t do enough.”²⁷ After downplaying his friendship with Ayers, Obama added, “I’m also friendly with Tom Coburn, one of the most conservative Republicans in the United States Senate,”²⁸ as if the law-abiding Oklahoma senator is somehow the right-wing extremist version of Ayers.

Even the Obama administration’s friends have noticed its hostility to conservatives. Former Obama Secretary of Defense Leon Panetta has explained that President Obama sees congressional Republicans as “people that simply won’t—don’t wanna do the right thing for the country.” Panetta expressed regret at Obama’s failure to work with the GOP and added, “Well, the reality is, if you wanna govern in this country, you have to deal with people you don’t like.”²⁹ But if Obama really believes that congressional Republicans are extremists who are unwilling to cooperate with him even when they know it would be “the right thing for the country,” it’s not surprising that he prefers to try govern on his own.

And in fact, the Obama administration’s defenders blame House Republicans’ purported extremism for the president’s failure to work with them. Yet the Republican leadership is no more conservative today than it was in the mid-1990s, when Bill Clinton found a way to work with the likes of Tom DeLay on major issues like welfare reform. Besides, in the American constitutional system, even blatant obstructionism from Congress does not give the president any additional authority. Given the separation of powers, a large risk of gridlock is built into the Constitution. As Professor Jonathan Turley notes, there has been bitter partisan division in Washington in the past, but no one thought that this somehow gave the president power to circumvent the lawmaking process.

In short, President Obama and many of his advisors are part of an elite liberal intellectual class whose members believe that fidelity to the Constitution and the rule of law are often less important than achieving progressive political ends. Obama came into office with a huge congressional majority, and what he and his supporters thought was a mandate to fundamentally move American society to the progressive left. Conservatives, however, have thwarted this ambition, especially since Republicans took control of the House of Representatives in the 2010 midterm elections. These same conservatives, meanwhile, are held in contempt by elite progressives, who think they are either dumb or evil, or both, but that they are certainly extremists. Faced with the prospect of compromising with them, as Bill Clinton did when the Democrats lost the House in 1994, Obama instead chose to unilaterally pursue as many of his policy goals as possible, the Constitution and other legal restraints notwithstanding. The media, rather than calling the Obama administration on its worst tendencies, has often served as its cheerleader. As a result, the Constitution and the rule of law have suffered.