So bitter and pronounced has become President Barack Obama’s distaste for the separation of powers that he is now riding roughshod over Madison’s handiwork at the expense of his own party. “Eight days after joining the Treasury Department as an adviser, Antonio Weiss was the lead U.S. official listed at a meeting with Wall Street executives,” Bloomberg’s Ian Katz records today. “Typically,” Katz adds, such roles are “played by the undersecretary for domestic finance — the same post Weiss lost after Democratic senators stymied his nomination.” And yet “Weiss’s presence at that Feb. 3 meeting on quarterly debt sales shows him diving into many of the same tasks that would have come with the undersecretary’s job.” Once a “failed nominee,” Katz confirms, Weiss has somehow “morphed” into a “key debt official” at the Treasury. Not since Jesus turned water into wine at Cana have we seen such a transmogrification.
On the face of it, Weiss’s metamorphosis would appear to represent little more than the brazen bending of the rules. But, if you stop and think about it in a more nuanced fashion, “typically” is a horribly reactionary notion, isn’t it? Technically, Katz is correct to propose that Weiss’s role is traditionally “played by the undersecretary for domestic finance.” But, in the age of Obama, such asseverations smack of outmoded thinking, of fealty to constitutional tradition, of respect for the established order, and of what the backward-looking luddites who are at present attempting to destroy America from within like earnestly to refer to as “the law.”
At first blush it must seem rather suspicious that the only functional difference between Weiss as undersecretary for domestic finance and Weiss as counselor to Secretary Lew is that the latter position “doesn’t require” the Senate confirmation that Weiss was so publicly denied. But first blushes are for schoolboys and bigots and haters, and for those wild-eyed radicals who would happily risk seeing into what sort of proto-Somalian hellhole the United States might fall if the Treasury secretary were to be denied an adviser for a few weeks. Here, as so often, we should presume that the president knows better than the other co-equal branches, and conclude that politics must not be permitted to intrude upon his getting his own way. Apologies to Elizabeth Warren and Dick Durbin, who made it their business to block Weiss’s nomination; but you know not what you do.
Or, perhaps not. Instead, we might hope that those who have been wounded by this development will “morph” themselves out of their pathetic decumbency and cry foul at the top of their lungs. The American constitutional order takes as its core presumption that men are not angels, and that, if given half a chance, those whom we have entrusted with power will push it to its practicable limits. Rather than attempting to breed the ambition out of its politicians, the Madisonian system endeavors to harness it, and then to set each man against the other so that a salubrious stalemate might be achieved. This system, however, is not self-executing. Indeed, for the process to work as designed, two habits need to be cultivated by the political classes. First, such minor rules as do exist must be obeyed; and second, in such cases as they are not, the injured branches must fight to defend their prerogatives.
That the two senators who were responsible for frustrating Weiss’s nomination “declined to comment” on his new role is perhaps unsurprising. Over the past couple of decades, it has been typical for the president’s party to put factional unity before institutional jealousy. But it is alarming nonetheless. For whatever reason, the Senate wanted someone other than Weiss to fill the role he now practically enjoys. This was made formally clear when its members refused to accord him its consent. If the president is permitted to sneak his jilted personnel in under the radar — in flagrant disregard of the legislature’s opinion — there will be little point in our having a confirmation process at all. In fact, should Obama now decline to nominate an alternative, this is precisely what will have happened. Why, one has to wonder, has Senator Warren been so quiet?
In this particular instance, Obama’s mischief primarily hurts the progressive populists within his own party, and not the conservatives he spends his days maligning. Indeed, upon hearing the news, some critics of the Warren-Durbin wing expressed a perverse satisfaction that somebody “sensible” was filing the role. At a purely practical level, this assessment is comprehensible. But if one cares at all about process, it is entirely to miss the point.
“The sequence of events” that led up to Weiss’s current position, Katz observes, “has raised questions about whether the administration is trying to circumvent the normal Senate confirmation process.” This is a beautiful example of professional understatement. In truth, there have been few moments since November of 2010 during which this administration has ceased looking to “circumvent the normal process” in some way, shape, or form. It should not be allowed to get away with doing so purely because the outcomes are occasionally salutary. Ultimately, I couldn’t care less whether Weiss is a better choice than Elizabeth Warren’s preferred candidate. If the Senate didn’t want him, he doesn’t get the job.
This same principle must obtain when it comes to Obama’s executive amnesty, which by the president’s own admission was an attempt to alter a policy that Congress refused to change. It must apply, too, to the executive branch’s many changes to Obamacare — the more egregious of which are now being hashed out in court. And it must pertain to the president’s extraordinary recess appointments, which were so obviously illegal that they invited a unanimous smack-down from the nine justices of the Supreme Court. There is little point in our having a codified constitutional system if the president is going to play silly buggers the moment a vote goes against him. Again: Where is Elizabeth Warren?
One can only imagine that, forgetting the oath that she took, she is playing a cynical long game. On balance, the progressive agenda has come out ahead in the last few years, and it has been repeatedly helped on its way by this White House’s casual attitude toward the rules. By 2015, the president’s constant administrative tinkering with his health-care legislation has helped to entrench its effects beyond its textual architecture and to put conservatives who hope to undo its myriad consequences on the back foot. The administration’s operating principle on the thorny question of immigration is a similar one: First, get as many illegals into the system as possible, and then, when it is too late, debate changing the law in Congress. To the cheat’s beady eye, the fact that the president has become drunk with unilateral power and installed a rebuffed official into a position of power may be a small price to pay for the giant leaps forward in other areas. Perhaps Warren and Durbin are silent because they know what’s good for them?
If so, one can’t help but wonder if there is a certain shortsightedness here. Of late, conservatives have taken to joking grimly about the lavish damage that a President Walker might be able to do to the progressive project if he were to tread the same unilateralist path as has Barack Obama. I have argued before that this comic threat is not only inherently dangerous and unavoidedly hypocritical — those who wish to conserve the system should not be hoping merely to change the abuser, they should be aiming to stop the abuse — but that it is also impractical on a large scale. (Republicans being the party of limited government, the Right’s scope for effective revenge really is limited.) And yet, it is not an entirely silly proposition. If we have so degraded the existing order that we are now indifferent to the integrity of the Senate’s enumerated powers to “advise and consent,” one can only imagine that there will be hell to pay the next time a right-winger is picking drapes at 1600 Pennsylvania Avenue. David Koch for counselor to Secretary Romney, anybody?