If September 17th was Constitution Day, then the 18th must have been Post-Constitution Day, right?
Generally I’ve critical of conservative thinkers, such as Mark Levin, when they say we now live in a post-Constitutional order. I just don’t think that’s accurate, even though we’re rather plausibly on the way there. But this last Thursday sure provided some uncanny evidence in support of that idea.
Item: whereas on September 16th, Virginia Senator Tim Kaine published an editorial in the NYT insisting that Obama had to have authorization from Congress to wage war against ISIS, on September 18th, he supported his Democratic Senate colleagues’ decision to delay a vote on the war until after the election!
This, despite the fact that for many months, Kaine has been talking up his efforts to develop and promote bipartisan legislation, which he calls the War Powers Consultation Act of 2014, that would better allow Congress to resist unilateral attempts by the executive branch to make decisions about war (part of the bill requires a vote after seven days of combat) and peppering this talk with quotations from Thomas Jefferson and James Madison, and effusions of patriotic love for that wise document, the Constitution. If Tim Kaine is looking for another illustrious quote of old with which to make his case, allow me to recommend these words from a prayer of the younger Augustine: “Lord, make me chaste! But not yet!”
Perhaps that is unfair—for a man like Kaine has to work with the Democratic Senate, and the Democratic base, that he’s got. Time will win them over to his view, and to a more consistent application of his principles.
But no, that’s not it. Bottom line: Kaine could have opposed this. He could have said, “My colleagues aren’t quite with me yet, and the ISIS situation is indeed a confusing one, but eventually they’ll see that their decision to delay a vote on these war actions was a mistake, that the principle of congressional war-initiation-oversight we’re hopefully going to more clearly enshrine always requires Congress to quickly give an initial yea or nay vote.” Again, that’s not my constitutional principle, but Kaine’s. I respectfully disagree with it, but regard it as a classic and more-often-than-not salutary American political belief. But Kaine made no stand for the principle, but reversed his whole position—at least until after the election—and hoped no-one would notice.
Item: whereas by Congressional legislation and Presidential declaration, September 17th has for many years now been celebrated by all government offices as Constitution Day, on September 18th, fifty Democratic Senators, with Tim Kaine among them, voted against a bill’s amendment that would have allowed a congressional vote upon President Obama’s promise to unilaterally issue an unprecedented in scope and baldly unconstitutional amnesty for many millions of illegal immigrants.
When does Obama promise to do this? After the election, when else?
How would Obama’s promise, if kept, violate the Constitution? Let us count the clauses. There’s the 1) take-care clause, 2) the presentment clause, 3) the clauses pertaining to the veto, of course understood in the light of judicial rulings that they do not permit line-item vetoes, and finally 4), there’s that pesky clause right at the beginning of Article 1: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” But the Senate refuses to even cast a vote upon this promise to steal their own power!
A few hardy souls, such as Eric Posner, have tried to argue that the promised amnesty would not violate the take-care clause, and that the action in is no way de facto legislation. The embarrassing thing for Democrats, however, is that Posner is an outright Executive-Branch Supremacist, and that his arguments were easily demolished, both by conservative columnist Ross Douthat and by many of the liberal commenters upon his original TNR piece. But alas, most Americans don’t know the news.
James Madison, whose wisdom is so extolled by Kaine, wrote in Federalist 51, a document which tens of thousands of teachers have taught to young Americans as representing the truth about their Constitution, that
…the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others.
Congress is supposed to resist when the President encroaches upon their powers. And one would think, the more blatant the encroachment, the greater the resistance. But for some reason, our congressional Democrats have lost all motive to resist. One might compare their attitude with that displayed by quite a few Democratic representatives of 1937, when FDR pushed to expand the Supreme Court, albeit by means of completely-constitutional legislation, and lost the vote in the Democrat-dominated Congress handily. But the Democrats of these latter days resist nothing, and what BHO promises is even worse, being nothing but an unconstitutional substitute for legislation.
And make no mistake, it might alter our system as much as an enlarged Supreme Court would have. If the Democrats allow Obama to do this, the next Republican president will win acquiescence from his party to his issuing an executive order of similar magnitude and unconstitutionality, perhaps unleashing a tit-for-tat dynamic that becomes a permanent feature of our system, de facto granting every future president some unspecified number of Super-Executive Orders. A few smart liberals like Jonathan Chait have issued warnings of this kind, but no-one in Democratic political or MSM circles heeds such, not even the rumored-to-exist moderate-minded Constitution-reverencing Democratic representatives, the kind that Kaine aspires to appear to be.
So, whatever the future holds for us, which I hope and pray will include a return to more serious allegiance to the Constitution, every teacher of Federalist 51 will from now on struggle to respond to a single pungent argument against its reasoning: “But, 2014!”
It’s all pretty “Scary Stuff,” Senator Kaine. And I say that after last week, that’s as much your foot trampling the Constitution there as it is Obama’s. Any possibility that you might give us some reassurances to the contrary? You don’t face election for four years. Are you going to step up and lead in matters constitutional? Say, by finally answering questions like this one? I’m sure those Republicans who take your position on what the Constitution requires with war-powers would like to believe you that you have some level of sincere devotion to the document, before they consider supporting your bill. I’m looking to the broader future, however, If you are not, as I think is now apparent, going to be the leader these polarized times call for, might you know of any up-and-coming Democratic stars, who are prepared to more fully assure their non-Democratic brothers and sisters that the Constitution still rules us all?
You can get back to me anytime. Even, if you wish, after the election.