Another week, another Obamacare delay, improvised by the administration. The latest is particularly laughable. It seems the administration miscalculated when it first decided to delay Obamacare’s mandated minimum coverage requirements for health insurance. According to the Hill: “A one-year moratorium pushed the deadline beyond the midterm election, but insurers must send out cancellation notices 90 days in advance. That would mean notices in the mail by October 1, five weeks before voters go to the polls.” So now Obama will extend the deadline even further, lest voters realize before pulling the lever that they’re about to lose health insurance plans the administration deems substandard.
Conservatives let out a collective chuckle over this news, but only to keep from sobbing. After all, what does this say about the rule of law in the United States? Ours is supposed to be a system of checks and balances: The legislature drafts the laws; the executive implements them; the courts interpret them. How has the administration gotten away with assuming all three roles? This cannot be a sign of a well-functioning republic.
James Madison’s description in Federalist 51 sounds like a smoothly operating governmental machine. “Ambition must be made to counteract ambition,” was how he put it. The idea is that our government would be self-correcting. Any transgression by one branch would bring a rebuke from another, thus preserving a balance.
But the rule of law has regularly been sacrificed at the altar of presidential ambition. Madison himself was the architect of a foreign policy that saw executive encroachments that would raise an eyebrow even today. During the Jefferson administration, the government sought to restrain trade with Britain and France, and in so doing the president strong-armed state governments and sought to use the Navy as a domestic police force.
A generation later, the capricious Andrew Jackson would regularly mistake his political self-interest for the public good. Celebrated as a staunch nationalist for standing up to the South Carolina nullifiers, Jackson looked the other way when Georgia ignored the (federally guaranteed) treaty rights of Native Americans because it furthered a policy goal of his. Worse, he acted in a blatantly illegal fashion by removing Treasury deposits from the Second Bank of the United States and placing the money in banks controlled by his supporters.
Teddy Roosevelt has often been celebrated as a model for vigorous executive action, but as Bowdoin College’s Jean Yarbrough convincingly argues, TR promulgated a theory of executive power during the 1902 coal strike that basically put him above the law. During World War I, the Wilson administration all but ignored the First Amendment as it threw people in jail for opposing a war that was not terribly popular.
FDR would have a similar disregard for the law, at least when it came to the dispensing of federal work relief (read: patronage). FDR and Harry Hopkins deployed jobs and revenue from the Works Progress Administration to undermine the independence of local Democratic party officials. They destroyed Tammany Hall in New York, bankrolled pro-FDR machines in Chicago, Jersey City, and Pittsburgh, and encouraged their cronies to use the WPA to “purge” the Senate of conservative Democrats.
The regularity with which presidents step outside their constitutional limits suggests that the cause is ultimately structural. And indeed it is inherent in our system as it has evolved over the centuries. The Framers were most concerned about congressional encroachment upon the executive and judicial branches. This helps account for why Congress’s powers are enumerated as well as why there are two chambers of Congress.
The Framers did not anticipate the modern presidency. The democratization of the presidential office did more than anything to disrupt the original design, ironic considering that the efforts of Madison and Jefferson in the 1800 presidential contest began this transformation.
A democratic presidency has had two profound effects. First, it gave rise to the idea that the president is the tribune of the people, the sole representative of the public good, and therefore endowed with authority that is not necessarily laid out in the Constitution. Jackson, TR, and Wilson all contributed mightily to the development of this viewpoint, and from there it is but a hop, skip, and a jump to ignoring Congress, the courts, and the law itself. And because this argument implicitly flatters the voters, it’s harder for opponents to prevail in the court of public opinion.