The Magazine

Dispensing with the Constitution

Obama’s executive caprice.

Jan 14, 2013, Vol. 18, No. 17 • By BRETT TALLEY
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The question raised by President Obama’s actions is: Where does the power to dispense with inconvenient or unpopular laws end? If an American president can simply decide not to enforce the laws proscribing the sale or use of marijuana, can he do so for other prohibited substances? Can he ignore the federal laws that define marriage as between a man and a woman? Can he ignore laws that prohibit the use of quotas in employment? The possibilities are endless. And they could also run in another direction entirely.

What is to stop a future pro-gun administration from deciding not to enforce statutes designed to punish felons who possess firearms, as some extreme partisans of the Second Amendment recommend? Could a future Republican president decline to prosecute whole classes of tax dodgers, effectively repealing certain revenue statutes? 

The problem can also be flipped around in yet another way. More than a dozen states have passed legislation repudiating Obamacare. Much like Colorado and Washington in the marijuana instance, they have put their state laws into conflict with federal laws. It is obvious that President Obama is not going to allow those states to defy Washington. To do so would gut his signature legislation. This time, it will be convenient for the president to assert his power as our chief law enforcement officer.

It is fascinating to recall that in defending Obamacare before the Supreme Court, the Obama Justice Department likened the federal power to coerce states into observing national health regulations to the federal power to coerce states into observing federal drug laws. Administration lawyers quoted chapter and verse from Gonzales v. Raich, which in 2005 had kept the state of California from going its own way in defiance of the Bush administration and the federal Controlled Substances Act.

Thus, in defending Obamacare while ignoring the Controlled Substances Act, the Obama administration wants to have it both ways. Upholding federal law, it tramples on the aspirations of states in some instances. Ignoring federal law, it facilitates the aspirations of states in other instances. This is the very definition of arbitrary government.

President Obama is an innovator in this respect, but we have been on the path to such arbitrary government for some time. His actions are the logical extension of a dolorous trend in our politics that has been growing for much of the postwar era. They are anchored in an ends-oriented, rule-by-enlightened-fiat theory that lies at the core of modern liberalism. That theory has already played out to a considerable degree in our judiciary, where jurists have espoused the doctrine of “living constitutionalism” and “substantive statutory interpretation,” which starts with favored results and reasons backward, finding “penumbras” and “emanations” in the Constitution to justify its predetermined conclusions. 

President Obama, who studied at the feet of some of the most prominent expositors of this theory at Harvard Law School—Laurence Tribe, Martha Minow, and Charles Ogletree, to name but a few—has simply taken it to the next logical step. Where in the past we had judicial disregard of the Constitution and laws duly passed by Congress, now we have executive disregard of the same.

Adding insult to injury is the deafening silence from liberals that has greeted President Obama’s executive caprice. It was only a short while ago that these same liberals were denouncing George W. Bush for a far less serious constitutional transgression. Thus, when President Bush had the temerity to add signing statements to laws that he found disagreeable, thereby clarifying his understanding of their provisions, he was greeted by howls of protest from liberal jurists. Indeed, it is ironic to recall that an American Bar Association task force in 2006 grimly lectured that the “president’s constitutional duty is to enforce laws he has signed into being unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal.”

What a difference a change in political party means when it comes to outrage. Where are the howls of protest now?

The difficult work of campaigning for change, of persuading voters and legislators of the wisdom of one’s ideas, has been replaced by executive fiat. The president, when challenged, has defended his use of discretion by declaring—as he did in the case of immigration—that it was “the right thing to do.” Whatever the merits and demerits of his policy choices, concentrating so much power in the hands of one man is antithetical to our system of checks and balances and the dispersal of power that it is supposed to ensure. Have we reached another way station on the road to becoming a government not of laws but of men?

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