Saving the Rule of Law
Executive lawlessness endangers our republic.



Lopez: We’re seeing this happen in the states too, with attorneys general announcing they will ignore marriage law. Which came first and which is the frontline of the battle now?

McCarthy: The states are following the federal lead. As Faithless Execution recounts, Attorney General Holder recently admonished the state AGs that, like Holder and Obama, they can pick and choose which state laws they will enforce — i.e., that they need not enforce state laws with which Obama disagrees, such as marriage laws adopted by the citizens. I explain in the book that this is a perversion of the “prosecutorial discretion” doctrine; Obama has used it all along and now the administration is trying to foist it on the states — and it will work in blue states. But the pressure to override democratic choices and bourgeois culture comes from Washington. The Left has long realized that by shifting ever more controlling authority to the federal government, one-size-fits-all standards and law-enforcement diktats — or, in the case of immigration law, non-enforcement diktats — can be imposed on the states.


Lopez: As a cultural — perhaps anthropological – matter, have we lost the appreciation that the president is not a ruler but a public servant? Some of our campaigns seem to treat politicians as if they can do more than they should, in some ways, don’t they?

McCarthy: Yes. There are several explanations for this. One is the media culture. I write a lot about the Washington soap opera, which is what news coverage has devolved into between the 24/7 cycle and the blurring of lines between news and opinion journalism. You can’t really get much straight news anymore, and the coverage is as much about personalities and political tactics as events — that is, it is not about the facts of, say, Benghazi or the IRS harassment of conservatives, but about how Obama really feels about these matters, how he will be affected by them, what he might do to turn the page from them, etc. Add to this culture a) the appalling lack of civic education about how our constitutional system of separation-of-powers and federalism is supposed to work, and b) the transformation of the legal and journalism professions from pillars of ordered liberty to agents of social change. What you get is a distorted view of the presidency — and more broadly, the federal government — as the place to which we look for all the answers, no matter how disconnected the questions may be from what the Framers had in mind for the limited role of the national government.


Lopez: What do you mean when you say “The pitchforks: That’s his public,” about the president?

McCarthy: I am quoting President Obama’s own words back at him. Near the start of his first term, the president presumptuously summoned a bunch of top finance execs from private industry to the White House to lecture them about income inequality. They dutifully showed up and tried to explain to him — a man with no meaningful business experience — why high salaries for corporate officers were necessary if American companies were to compete in a global market. He peremptorily cut them off, saying, “The public isn’t buying that,” and warning them, “My administration is the only thing between you and the pitchforks.” It is the air of extortion around a person, especially a powerful one, who lets you know he is willing to use his raw power outside the bounds of law — whether by bullying, demagoguery, or his capacity to make your life miserable in a variety of different ways. That’s how he operated as a community organizer in the Alinsky mode.


Lopez: Why is Saul Alinsky still notable to talk about?

McCarthy: For precisely that reason. Obama is not randomly lawless. He is lawless with a precise purpose to, as he put it, “fundamentally transform the United States of America.” He wants a centrally planned state run by a federal government where power is concentrated in the presidency and the administrative agencies, which will dictate standards down to the grain in all aspects of life, and which will redistribute wealth to accord with their own subjective notions of “fairness” and “social justice” — meaning if you’re a pro athlete, a pop star, a celebrity journalist, a generously compensated left-wing academic, a government employee, a union officer, or a billionaire who lavishes funds on all the right progressive causes (including Democratic party candidates), you’ll be insulated from the crushing burdens the rest of us will have to bear.


Lopez: “Today, well beyond the New Deal and the Great Society, the administrative state is socializing health care, micromanaging industry, dictating education solutions, taking over automotive and insurance giants, underwriting mortgages and student loans, borrowing trillions of dollars from itself (i.e. printing trillions of dollars for itself), and even mandating coverage for contraceptives and abortafacients.”

McCarthy: Yes, and the remarkable thing is that we put up with it. I marvel in the book at de Tocqueville’s prescience in warning that democracy could devolve into a comparatively soft tyranny, in which the individual serves an “immense and tutelary” state and its centrally-planned, punctiliously regulated society, enjoying only as much liberty as the government deigns to grant him.


Lopez: You write: “True law is the moral and ethical consensus of a civil society, reflecting the conscience of a free and virtuous people.” Do we even know what conscience is anymore?

McCarthy: Well, we have a well-trained politically correct conscience. The Gosnell trial didn’t upset too many people, but Gaia help you if you light up an e-cigarette in an outdoor café!


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