In his dazzling revolutionary polemic, Common Sense, Thomas Paine explained in no uncertain terms that
in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.
John Adams put this a little more pithily a few years later, distilling into the new constitution of Massachusetts an ancient English value: This state, Adams wrote, would be “a government of laws and not of men.”
Adams’s axiom has become American scripture; an impulsively recalled maxim of liberty to which all men who feel threatened by government power return at will. Yet recent trends call into question whether the two things remain mutually exclusive. In Common Sense, Paine sets the king and the law as being diametrically opposed. But what if, instead of holding him back, the law is happy to give the king carte blanche? And what if a Congress that we instinctively believe to be jealous of its territory is in fact content to cede it to the executive branch, thereby producing not traditional laws but enabling acts?
It is a small jump from regarding the Constitution as “living” — as swathes of the will-to-power Left unashamedly do — to regarding legislation
as “living,” too. This is a jump that many appear to have made. One of the more insidious developments of this presidential era has been the replacement of prescriptive, detailed, and fixed domestic law with bloated and open-ended legislation that is punctuated ad nauseam with instances of “the secretary shall.” As my colleague Andrew Stiles has noticed, the Senate’s desired immigration bill fits this new model of “living law” perfectly. He writes
The 844-page bill contains 129 instances of what the DHS secretary “shall” do to implement its myriad provisions, 102 mentions of what she “may” do, and 35 cases in which implementation will be based on what the secretary “determines.” On five occasions, the bill affirms the DHS secretary’s “unreviewable discretion” to waive or alter certain provisions as she sees fit.
This should come as no great surprise to anyone. Obamacare, which makes the Senate’s immigration bill look like an exercise in legislative restraint, contains over 2,500 references to the secretary’s discretion, 700 cases in which the secretary “shall,” 200 instances in which the secretary “may,” and 139 cases in which the secretary “determines.” Its twin, Dodd-Frank, which effectively allows an unelected Consumer Financial Protection Bureau to police the personal-finance sector, is little different, aggregating the power of the three branches into one, stripping Congress of its traditional capacity to set an agency’s budget, and severely limiting the courts’ opportunity to review the CFPB’s legal interpretations. This is law, Jim — but not as we know it.
To ask for a concise explanation of what these new sorts of laws do would be futile, because the only meaningful answer is that they give the president the scope to run certain parts of the economy the way he wants. And what he wants is what Woodrow Wilson wanted in The Study of Administration: a means by which to “open for the public a bureau of skilled, economical administration” that is filled with the “hundreds who are wise” and that thwarts the “selfish, ignorant, timid, stubborn, or foolish.” Government of the expert, by the powerful, and for the unworthy, in other words.
This, it should not need saying, stands in diametric opposition to the underlying principle — the “all-important English trait,” Orwell called it — that made the Anglosphere exceptional in the first place: that the law is regarded as “something above the state and above the individual, something which is cruel and stupid, of course, but at any rate incorruptible.” “The totalitarian idea that there is no such thing as law, there is only power, has never taken root,” Orwell claimed of his native England. It has not quite taken root in America, either. But even here, the law, which should be firmly and beautifully dead, is in danger of taking on a life of its own. If it is allowed to do so, Americans will invite in caprice, the half-brother of whim, which, as Christopher Hitchens astutely observed, is the “essence of tyranny.”
Students of history will know that Americans have flirted with such expansive measures before, with consequences that were catastrophic for good and limited government. In the modern era, the worst such example is the Gulf of Tonkin Resolution (1964), which, by virtue of its wildly ambiguous language and a remarkable fail-safe provision that allowed the president to “take all necessary measures” in Southeast Asia, effectively gave President Lyndon Johnson license to launch and escalate the Vietnam War without the need for Congress’s warrant. The eventual outcry, joined with general disillusionment with the imperial presidency, led not only to repeal of the resolution itself but also to the War Powers Act (1973), which, for some time at least, went some way toward restoring congressional constraints on the executive branch. Do we need a Domestic Powers Act to complement it?