The president and his admirers dismiss concern over this as so much chum for the talk-radio ravers, but it is no such thing. The job of the president is to execute the law — that is what the executive branch is there to do. If Barack Obama had wanted to keep pursuing his career as a lawmaker, then the people of Illinois probably would have been content to preserve him in the Senate for half a century or so. As president, he has no more power to decide not to enforce the provisions of a duly enacted federal law than does John Boehner, Anthony Weiner, or Whoopi Goldberg. And unlike them, he has a constitutional duty to enforce the law. Representative Tom Cotton says that the president’s health-care delay makes a deal on immigration less likely — if the president can simply decline to enforce the provisions of a law he fought for, why trust him to enforce provisions of a law he is accepting only as a compromise? Representative Cotton must also of course have in mind the fact that after Congress had unequivocally rejected another piece of immigration reform, the so-called DREAM Act, that the president had supported, he simply instituted it unilaterally, as though he had the authority to declare an amnesty himself. He then did away with criminal-background checks for those to be amnestied, also on his own authority. Strangely, the order to halt background checks came down on November 9, 2012, the same day that John Boehner said Republicans would seek a compromise on immigration reform.
In a similar vein, President Obama refused to cut off foreign-aid funds to the Egyptian government, though he is required by law to do so in the event of a coup d’état, which is precisely what happened in July in Egypt. It might be embarrassing for the president to punish the Egyptian military and the grand mufti of al-Azhar for their overthrow of the unpopular Mohamed Morsi, but the law does not make exceptions for presidential embarrassment. The president is not legally empowered to assassinate American citizens, but he has done so, after going through the charade of drawing up a legal argument under which he judged himself entitled to do what the Constitution plainly prohibits. The law also prohibits the president and his allies from using the instruments of government to persecute their rivals, but that is precisely what the IRS has been up to for several years, as it turns out. And not just the IRS: Tea-party activist Catherine Engelbrecht was subject to an IRS audit, two FBI visits, an OSHA investigation, and an ATF inspection of her business (which does not deal in A, T, or F). And although the IRS has no statutory power to collect Affordable Care Act–related fines in states that have not voluntarily set up health-care exchanges, Obama’s managers there have announced that they will do so anyway.
The president not only ignores the law but in some cases goes out of his way to subvert it. The U.S. military carried out the killing of Osama bin Laden, but the records of that event have been removed from military custody, where they are subject to inquiries under the Freedom of Information Act, and moved to the CIA, where they can be kept in secrecy. He has attempted to make “recess appointments” when Congress is not in recess and has been stopped from doing so by the federal courts, which rightly identified the maneuver as patently unconstitutional.
There exists a federal law called the Religious Freedom Restoration Act, which restricts the federal government’s power to force Americans to violate their consciences. The Obama administration is forcing an abortifacient mandate upon practically all U.S. employers, in violation of that law. Kathleen Sebelius, the secretary of health and human services, who is responsible for drafting those regulations, received a number of letters from lawmakers arguing that the mandate she was contemplating violated the law; she proceeded anyway — without so much as getting an opinion from her departmental lawyer.
Congress’s supine ceding of its powers, and the Obama administration’s usurpation of both legal and extralegal powers, is worrisome. But what is particularly disturbing is the quiet, polite, workaday manner with which the administration goes about its business — and with which the American public accepts it. As Christopher Hitchens once put it, “The essence of tyranny is not iron law; it is capricious law.” Barack Obama makes a virtue out of that caprice, having articulated for his judicial nominees not a legal standard but a political standard requiring sympathy for politically favored groups: African-American, gay, disabled, old, in his words.
We have to some extent been here before. It is a testament to the success of free-market ideas that it is impossible to imagine President Obama making the announcement that President Richard Nixon did on August 15, 1971: “I am today ordering a freeze on all prices and wages throughout the United States.” President Nixon created not one but two IPABs, the Pay Board and the Price Commission, which were to be entrusted with managing the day-to-day operations of the U.S. economy. President Nixon, too, was empowered by a Congress that invested him with that remarkable authority, through the Economic Stabilization Act of 1970, whose provisions were to be invoked during times of economic emergency. There was no economic emergency in 1971, but it is a nearly iron-clad rule of the presidency that powers vested will be powers used. That President Obama has adopted President Nixon’s approach but limited himself to health care might be considered progress if he had not adopted as a general principle one of Nixon’s unfortunate maxims: When the president does it, it isn’t illegal. President Nixon’s lawlessness was sneaky, and he had the decency to be ashamed of it. President Obama’s lawlessness is as bland and bloodless as the man himself, and practiced openly, as though it were a virtue. President Nixon privately kept an enemies list; President Obama publicly promises that “we’re gonna punish our enemies, and we’re gonna reward our friends.”
Barack Obama’s administration is unmoored from the institutions that have long kept the imperial tendencies of the American presidency in check. That is partly the fault of Congress, which has punted too many of its legislative responsibilities to the president’s army of faceless regulators, but it is in no small part the result of an intentional strategy on the part of the administration. He has spent the past five years methodically testing the limits of what he can get away with, like one of those crafty velociraptors testing the electric fence in Jurassic Park. Barack Obama is a Harvard Law graduate, and he knows that he cannot make recess appointments when Congress is not in recess. He knows that his HHS is promulgating regulations that conflict with federal statutes. He knows that he is not constitutionally empowered to pick and choose which laws will be enforced. This is a might-makes-right presidency, and if Barack Obama has been from time to time muddled and contradictory, he has been clear on the point that he has no intention of being limited by something so trivial as the law.
— Kevin D. Williamson is roving correspondent for National Review. This article has been adapted from the August 5 issue.