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.
Whether Congress is, or is not, in recess, or whether wealthy bondholders should be paid back before working-class union pensioners, or whether some company should or should not be allowed to drill in the Gulf — these and others are moral and political, but not necessarily legal, issues. To the degree that he can, on any given challenge Obama assesses the politics of favoring his constituency of the “poor” and “middle class,” and then uses the necessary legal gymnastics post facto to offer the veneer of lawfulness.
If someone is breaking a federal “law” by entering Arizona illegally from Mexico, there must be a way to make the enforcer of that “law” the real suspect — given that a Sheriff Joe Arpaio is by allegiance of the privileged 1 percent and those whom he arrests most surely are not. Consumers are deemed to need federal help more than do lenders; accordingly, Congress “really” is now in recess. In other words, we are witnessing with this administration the ancient idea of the supposedly exalted ends justifying the somewhat ambiguous means — albeit dressed up in trendy Ivy League legalese and progressive moralizing.
Our postmodern president is not content with just picking and choosing which laws he will follow in advancing his social agenda. The war against the myth of disinterested Western jurisprudence extends also to free-market economics, as we see with the monotonous demonization of the so-called 1 percent and those who make over $200,000 per year. Sometime after January 2009, we learned that the “wealthy” did not gain their riches by a wide variety of what we once thought were legitimate means — luck, inheritance, work, health, intelligence, expertise, experience, education, or an overriding desire for money and status, coupled with an avoidance of classical sins like sloth, crime, and drunkenness.
Rather, we were taught that there was something else going on, something innately unfair in the manner in which we are arbitrarily compensated. In some sense, we are back to the old notion of a labor theory of value (e.g., an hour of working at Starbucks is inherently no less valuable to our society in terms of how much the worker should be paid than an hour crafting a deal at Goldman Sachs). The role, then, of government is not to ensure an equality of opportunity — which is impossible, given inherent and unending race, class, and gender exploitations — but to strive for an equality of result.
That utopian task demands that the best and the brightest in government redistribute capital, or rather use the state to make right what the private sector has distorted. (Of course, no one dares to suggest that Obama himself is cynically interested mostly in power and the delights thereof — and so as a postmodernist he simply constructs these egalitarian stage-sets as a means to enjoy the privileges of the technocratic class that he surrounds himself with.)
Tally up Obama’s early and recent unrehearsed and unguarded quips about wealth — “Spread the wealth”; his regrets that the Supreme Court has not addressed “redistributive change”; his concern that some have not realized that they already have made “enough” money; his warnings that now is not the time for “profit.” That serial message bookends the president’s slurs about millionaires and billionaires, corporate-jet owners, fat-cats, profit-driven doctors, and Vegas and Super Bowl junketeers.
All this unscripted editorializing reflects a recurring theme: Those with superior intelligence and higher moral authority must correct for warped private-sector compensation and human greed. And they can do that by deciding roughly how much each of us deserves to end up with.
In concrete terms, this pop socialism leads Obama to wish to enact more regulations, higher taxes on fewer taxpayers, and more on entitlements. Larger government can absorb health care and also many private-sector companies, as more federal and state workers likewise can even out the playing field. Near-zero interest rates, and renegotiating mortgage or student loans, along with higher deficits, more national debt, and expansionary monetary policy are likewise means to correct the inherent imbalances of the system and counter the greed of a few among us.
It does not matter that much whether, in the attempt to do all that, the better-off must be demonized with crude sloganeering. It does not matter that the poor must be caricatured as Steinbeck’s Joads, starving and poorly clothed, lacking iPhones, $200 sneakers, and big-screen TVs. It does not matter that 20th-century phenomena like National Socialism, Communism, and the European Union — and any other crackpot effort of a self-anointed elite to redistribute wealth and expand the state under the banner either of nationalism, or the global proletariat, or enlightened world citizens — have led only to poverty and chaos, at least for those outside the small exempt managerial class that implements, profits from, and often survives the ensuing disaster.
What makes Barack Obama a different president is not his racial heritage, his liberal outlook, or his mellifluous cadences, but rather the banal idea that the United States is fundamentally in need of this sort of radical change, and that only a select few like himself have the insight and skills necessary to both implement and preside over it. We simply have not seen that redistributive ideology in a president since Jimmy Carter, and then only in part. So far the biggest edge for Obama is his inability to push more of his agenda through first a friendly and now a not-so-friendly Congress — as if to say, “How could I be a redistributionist when they did not let me redistribute as planned?”
The fulfillment of that old vision of mandated equality of result is what the 2012 election is about — nothing more, nothing less.