President Obama seems to be doing everything in his power, and quite a few things that are not legitimately within his power, to bring about a constitutional crisis. He has repeatedly suspended laws he dislikes or finds inconvenient, or rewritten them according to his preferences. The Supreme Court has on several occasions ruled that the Obama administration was exceeding its constitutional authority: most recently, in making appointments without getting the required consent of the Senate. On many of those occasions, including that one, the Court has ruled unanimously, with even Obama’s own appointees to the Court joining in the rebuke.
Now the administration appears to be preparing to grant legal status to millions of illegal immigrants by creating a program to sidestep the immigration laws. Congress has been considering legislation to provide this legal status for nearly a decade, but it has never passed. For the administration and its supporters, this “failure” (as it is always described) means that “the system is broken.” The conclusion they draw from this premise, though they rarely state it directly, is that the president must therefore resort to novel forms of lawmaking that the Constitution does not contemplate.
The president’s action, if undertaken, will amount to his seizure of legislative power over immigration. The implicit argument for it is incompatible not just with the Constitution but also with constitutionalism. It amounts to saying that political actors should ignore the basic law whenever it is not yielding the results they desire, so long as they can get away with it. Obama’s predecessor had roughly the same views on immigration policy as he does and had roughly the same amount of contempt for his opponents on the issue, but George W. Bush does not appear ever to have considered imposing his preferred policy unilaterally. Nobody, until midway through the Obama administration, seems to have thought this step might be permissible.
The extraordinary executive actions already taken, with the threat of more to follow on immigration, have Republicans mulling over extraordinary responses. The Republican-controlled House has voted to authorize lawsuits against the president over his selective enforcement of the health-care law he signed in his first term. Some conservatives are talking about impeaching the president for abuse of power. In neither case, though, do they have much hope of altering the president’s conduct. Removing the president from office would take 67 votes in the Senate, which would be impossible to secure even if the public desired it. The lawsuit, even if it succeeds, does not touch a broad range of constitutionally objectionable administration actions.
The press is covering these responses without conveying how unprecedented and lawless the administration’s behavior has been. So the administration’s supporters have felt no need to offer a real defense of this behavior. The constitutional controversies of the previous administration centered on how far the president’s wartime powers as commander-in-chief extended. No explicit constitutional theory is being advanced to justify Obama’s acts. The prevailing line has been instead that he is doing nothing at all unusual — here the chief tactic is to count the executive orders issued by different presidents, as though those numbers had any bearing on the issue — and that claims to the contrary are partisan madness.
The administration’s position is buttressed, in a few specific cases, including the immigration one, by contrived-for-the-occasion arguments to the effect that if you squint hard enough at the law, the president is not technically breaking it, even if he is exploiting its possibilities in a way no previous president has done or considered. And we reach a familiar conclusion: There is nothing to see here but Republican extremism. That’s the story in the press.
It has basically been the story throughout the Obama administration. The president, according to an influential strain of punditry, has been governing as a moderate — as an Eisenhower Republican, really. (You will recall how Eisenhower pushed through an unpopular restructuring of the health-care system.) Given this assumption, the fractiousness of our politics can be explained only by the increasingly radicalized conservatism that has today’s Republican party in its grip.
Both the damage to our constitutional order and the state of the debate over it might well drive conservatives to despair. If there is a reason for hope, it is that the pundits’ hostile account of conservatism has an element of truth. There is something new in today’s tea-party conservatism. It contains within it the beginnings of a political constitutionalism that could serve as a how-to manual for repairing that damage.
“Constitutionalism” is a term that has been associated with the tea parties from the start. Though the term has rarely been well defined, we can identify a few constitutionalist themes. One is that constitutionalism is a special case of respect for the rule of law: It means treating the Constitution as law that binds on everyone, including judges, and that can be changed only by using the procedures the Constitution lays out for that purpose. Another is that the Constitution should be obeyed not just because it is the law but because it is good law. It embodies a great deal of wisdom about how societies, and especially our society, should be governed. And still another theme is that the practices of our government have conformed less and less to the constitutional design.
Conservatives sometimes carelessly say that they want to go back to “the original Constitution,” which we should not want to do: The Reconstruction Amendments added to the document’s excellence and remedied its defects. But conservatives are right about the erosion of the constitutional structure and the baleful consequences of that erosion — and they are right that it has been going on for a long time. President Obama’s actions may be especially flagrant, but modern government has long slipped its constitutional tether.
#page#This is no merely formal problem: It has made for a government that is not only too big but also unwieldy, ineffective, and unaccountable.
Joint federal–state programs grow seemingly inexorably, unable to be reformed no matter how disappointing their results. The federal government inserts itself into every nook and cranny of American life, with no decision too local or trivial to escape its attention. Federal courts micromanage institutions — schools, prisons — and on issue after issue make policy judgments traditionally confined to legislatures. Businesses face multiple and sometimes conflicting regulators in an atmosphere of pervasive uncertainty. Agencies combine legislative, judicial, and executive powers while staying far removed from the control of voters. And now, presidential orders revise laws without a vote of Congress.
The result of all of this is nothing so coherent as socialism, as constitutional scholar Michael Greve has remarked: Socialism implies a plan. Instead, much of government becomes a series of shakedowns, special-interest deals, and programs that continue from inertia. This type of government can weaken the economy and civil society, but it cannot reach the lofty ambitions politicians set for it. And it is a far cry from the limited, deliberative government of divided powers that the Founders envisioned.
Take, for expensive example, the growth of Medicaid, a program that has repeatedly brought about fiscal crises for state governments without yielding much in the way of health benefits for its low-income recipients. Medicaid allows state governments, within limits, to add people and services to the program, with the federal government picking up at least half the cost. In good times, state officials can offer their voters two or more dollars of benefits for a dollar of taxes. In lean years, the program is hard to pare back because state offcials have to take away two or more dollars of benefits to save a dollar.
So the program expands: States exploit one another’s taxpayers, who end up paying for more spending than they would if either the federal government or the states had full responsibility for funding and running the program. And federal and state officials blame each other for the frustrating results. We get more government, and worse government.
Tea partiers have attempted to provide a diagnosis as well as a prescription for what ails our constitutional system. In two respects, this prescription runs against the trend of recent decades. The modern tendency is to treat the rights protections in the Bill of Rights as the most important element of our constitutional system, with the structural provisions in the Constitution’s main body an afterthought.
The tea partiers implicitly rejected this view of things in taking on Obamacare. The individual mandate ran into trouble not because it violated some specific prohibition in the Bill of Rights, but because it could not be justified as “necessary and proper” to execute the Article I powers of Congress. We can infer from the few and limited instances in which the Constitution authorizes Congress to commandeer individuals that commandeering them outside those contexts is presumptively improper. The Supreme Court did not reach a decision on Obamacare that made tea partiers happy, but on the question of propriety it agreed with them.
Tea partiers have not, however, been looking exclusively to the courts to advance their constitutionalist aims. This is a second respect in which their approach breaks with the political culture of recent decades. The tea-party movement is in part a revival of popular interest in constitutionalism. Instead of treating the Constitution as the property of lawyers and judges, it proposes that legislators, and even citizen-activists, have an independent duty to evaluate the constitutionality of legislation. The courts have an important role in defending constitutional norms, of course, and tea partiers do not deny it. But they also recognize that the task of enforcing the Constitution is too large to be left in its entirety to the courts. The courts cannot set right all that is awry with contemporary government. They cannot do that for reasons of politics, of prudence, of institutional capacity, and of judicial restraint.
That task will have to be pursued, then, primarily through politics. And a political constitutionalism will have certain features by necessity.
It will, for one thing, be different from a purely legal constitutionalism. Constitutional advocacy in the courts is tightly bound up with Supreme Court precedents. The Court gives those precedents great weight because of concerns about both legal stability and institutional authority. A political and legislative argument about the Constitution need not be constrained to the same degree. A conscientious legislator will give precedents some weight: He will want to take into account the likelihood that a bill he is considering will be struck down by the courts; he should have a healthy regard for stability; he should be willing to be persuaded by the Supreme Court’s analysis of a constitutional question.
He may from time to time, however, decide that the Court has gotten it wrong. He may decide to oppose a bill on the ground that it does not accord with his own understanding of the Constitution, even if he expects the courts would uphold it in a lawsuit. Many conservative legislators have taken exactly this tack with respect to gun regulations: For decades, they called some of these regulations unconstitutional, even before the Supreme Court finally concluded that the Second Amendment does indeed protect an individual right.
A constitutionalist legislator may even oppose a bill for broad constitutional reasons that he does not wish to move the courts. Let’s say a legislator were considering a health-care bill along the lines of Obamacare but lacking a specific objectionable provision such as the individual mandate. The legislator could oppose that bill for all the usual reasons, considering it too expensive or unlikely to work or so on. He might also, however, oppose it for exceeding the legitimate powers of the federal government.
#page#His argument would be that the Constitution establishes a presumption against federal activity that can be defeated only by strong considerations. The federal government is defined as one of limited powers, and the Tenth Amendment reiterates that the states and the people retain all others. To judge a proposal for a federal program to be contrary to the Constitution will therefore require answering such questions as whether the states and the people could serve the program’s purpose without federal involvement. Often that judgment will turn on quintessentially legislative determinations: Is the program necessary? Are its means well proportioned to its ends? Are there better ways of achieving those ends?
A political constitutionalism will therefore involve a less restrictive form of reasoning than a legal one. The constitutionalist legislator, or citizen, will not always need to find a clearly articulable rule to decide that this proposal goes too far while that one is appropriate as a constitutional matter — the sort of legal rule we would want the courts to apply in deciding whether to strike down legislation. He will want to be able to draw on a wider range of considerations than the justices would: He might, for example, decide that our proposed health-care law would warp the national character by making the federal government’s decisions too important to citizens’ health. He might also judge a presidential act to be perhaps technically legal while still grossly improper as a constitutional matter.
A political constitutionalism should be incrementalist and practical rather than apocalyptic. In rejecting a judicial monopoly on constitutional interpretation, the constitutionalist also gives up the fantasy that any particular arrangement can guarantee perfect fidelity to the Constitution. If he sees laws and programs that do not fit with our constitutional commands and ideals, he will not vainly demand that they all be abolished straightaway. Instead he will act patiently and intelligently to move government closer to its proper bounds. If he finds himself unable to abolish a program he thinks a poor fit for our constitutional order, he will try to reform it to render it less obnoxious or destructive.
A political constitutionalism must involve the public in constitutional deliberation. It is a deep public commitment to the Constitution, more than any institutional arrangement, that is the document’s chief guarantor. We had a more modest federal government for most of our history for many reasons, but it may safely be said that a political culture skeptical of federal power was a more important factor than the exertions of the Supreme Court.
At key moments in our history, political leaders have made arguments to rally the people to the defense of our founding ideals. Abraham Lincoln explained that the logic of the Constitution and the Declaration of Independence was incompatible with slavery. Closer to our own day, Ronald Reagan revived the language of constitutionalism, referring to the Founders more than had his six predecessors combined. In our time, conservatives have to make the case that we can and should repair the constitutional structure.
Part of making that case is drawing out the constitutional dimension of everyday policy disputes. The REINS Act, which requires Congress to vote on major regulations before they can take effect, is not just a way to promote economic growth, though it is that; it is a way of reviving the separation of powers. Replacing much of Medicaid with tax credits that enable beneficiaries to join the regular health-insurance market is sound health policy, but also sound federalism policy. Reforming Medicare so that it no longer attempts to set prices throughout the health sector is a way to make American health care less expensive and more efficient, and it’s also a step toward the more modest federal role envisioned by the constitutional design. In each case, the practical benefits of the policy should be used to illustrate the wisdom of the Constitution.
Conservatives should not see the making of public arguments about the Constitution as a last resort to fall back on only when institutional safeguards have failed. No less an authority on the purpose of the Constitution than James Madison suggested that public argument would be one of the chief means of making the Constitution effectual. Speaking in favor of the Bill of Rights, Madison conceded that “it may be thought all paper barriers against the power of the community are too weak to be worthy of attention.” His answer to that objection: “Yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one mean to control the majority from those acts to which they might be otherwise inclined.”
These, then, are some of the implications of conservatives’ constitutionalism. They do not add up to a program to attain greater fidelity to the Constitution so much as they point toward a way of thinking about the task. And they suggest some of the dangers of some of the ideas conservatives are currently entertaining.
The lawsuit Speaker Boehner favors may be the right way forward in the present circumstances. But it should not be evaluated as though the only important questions were legal ones about how the courts have treated the standing of Congress to initiate suits. It runs the risk of inculcating the overreliance on the courts that tea partiers have rightly rejected and that has proven to be a poor strategy for improving fidelity to the Constitution. It also runs the risk of narrowing conservatives’ broader constitutional case about Obama, and about modern government. That broader case does not, after all, have much to do with the precedents about congressional standing that are sure to dominate discussion of the suits.
Impeachment raises different difficulties. In theory, a Congress with a supermajority of constitutionalist conservatives might favor removing from office a president who had abused his powers as Obama has. Yet such a Congress would have other, less drastic means at its disposal to tame him. This Congress would, presumably, be able to use the power of the purse effectively, for example; it would have a veto-proof supermajority to enact all sorts of conservative legislation that Obama would greatly dislike. Fear of its behavior would become a reason for him to moderate his.
The political constitutionalist would seek to build a political majority against the abuse of power and to elect a legislature that would use its many means of combating it as wisely as possible. Publicizing presidential abuses would advance those goals. So, perhaps, would discussing whether they constitute the “high crimes and misdemeanors” of which the Constitution speaks. Working toward an actual vote on impeachment in the House, on the other hand, seems unlikely to result in the election of more constitutionalists or to improve presidential conduct, which is no doubt why the president and his allies are so keen to talk up the idea.
Confronted by presidential lawlessness, some conservatives are tempted to throw up their hands and conclude there is not much we can do about it. But there is something we can do about it: We can make the case to the public that the president must be bound by the laws and that executive dereliction of duty is a threat to national well-being. If we impose a political cost for violating a norm, we increase the odds that future presidents will feel bound by it and thereby reestablish it. And we can work on winning the next election for a president, and a Congress, who are committed to vindicating the Constitution — and on winning the election after that one as well.
– This article is adapted from a chapter in Room to Grow: Conservative Reforms for a Limited Government and a Thriving Middle Class, a YG Network publication available online.