There has been for months a popular parlor game of tallying instances in which President Obama seems to have either ignored or simply bypassed federal law. But what started out as a way of exposing occasional hypocrisy is now getting a little scary.
Most recently, President Obama made several recess appointments — a tactic that as a senator he once criticized — even though Congress was not in recess. In December, the president signed a $1 billion omnibus spending bill, but notified Congress that he might not abide by some of the very provisions he had just signed into law. During the Libya war, Obama felt that bombing Qaddafi’s forces did not really constitute military operations, and therefore he had no need to notify Congress under the War Powers Act.
It is clear that Arizona is not trying to circumvent federal immigration law, but rather is desperately trying to find some way to enforce it, given that the Obama administration has selectively chosen not to do so. In response, the federal government is suing the state of Arizona, even as it assures illegal aliens that they will not be arrested if they have not committed a crime — as if Obama can by himself decide that illegally entering and residing in the United States is not a federal crime in the first place.
President Obama argued that it was constitutional to force citizens to purchase federalized health care, and that all Americans would be subject to his new health-care law — except some 2,000 businesses and organizations that were given politically driven waivers. Obama decided to reverse the legal order of creditors in the bailout of a bankrupt Chrysler Corporation in favor of more politically suitable constituencies. The administration does not like the Defense of Marriage Act, and therefore announced that it won’t enforce it. When a federal judge struck down an Obama- administration ban on new leases for gas and oil drilling in the Gulf of Mexico, Obama for a time ignored the injunction. When a BP oil leak in the Gulf outraged America, the president met with company executives and announced that they had agreed to set up a $20 billion “fund” to pay for imminent damage claims — as if our chief executive now meets with culpable private businesses to assess what he thinks they should pony up to avoid federal retaliation.
Every administration, of course, has constitutional disputes with Congress, the courts, and the public over the exact limits of its power. But in the case of the Obama administration there is a new sort of lawlessness unseen in recent governments. Is that predictable or surprising, given Obama’s own constant references to himself as a former constitutional scholar and community organizer?
Both as a state legislator and as a U.S. senator, Obama blasted as unconstitutional or abuses of presidential power almost all of the Bush-Cheney anti-terrorism protocols — Guantanamo, renditions, military tribunals, preventive detention, the Patriot Act — which as president he later embraced or expanded. Apparently, Obama’s own status as an out-of-power senator or an in-power president, and the degree to which such issues were or were not politically useful to his larger agenda, alone determined whether something like renditions or military tribunals was lawful.
Other than the normal explanations of abject hypocrisy and political expediency, why has the Obama administration shown such a disdain for the integrity of the law? In a word, Obama is a postmodernist. That is a trendy word for someone who leaves academia believing that there are not really absolute facts, but merely competing ideas and discourses. In this view, particular ideologies unfortunately gain credibility as establishment icons only from the relative advantage that arises from race, class, and gender biases.
In postmodern jurisprudence, “critical legal theory” postulates that law and politics are inseparable. Those with power call their self-serving rules “the law.” But “laws” are not sacrosanct. Instead, they are mere embedded reflections of wealthy, white, and male privilege — dressed up in some bogus timeless concept of “justice.”
A few critical and progressive minds among the legal technocracy have the ability to spot these fictions. And thus a Barack Obama or an Eric Holder has a duty on our behalf to use his training to make the necessary corrections, even if the rest of us don’t quite fathom what is going on. Federal voting-rights laws, for example, do not mean ensuring that no one intimidates voters. Hardly. They are instead fluid and relative, properly focusing only on those who are not now intimidating voters but whose ancestors might have, while exempting those who now are but whose ancestors might have been intimidated.