The rule of law is on the ballot
There were warning signs about President Obama’s fealty to the Constitution even before he took the oath of office.
As a senator he had voted against the nomination of John Roberts to be chief justice of the Supreme Court, arguing that Roberts was deficient in the “empathy” required for the position. In a speech during his campaign for the Democratic presidential nomination, he said any justice he selected would have “to understand what it’s like to be poor or African American or gay or disabled or old.” In other words, he wanted a judicial thumb on the scales for liberalism: Notice that he didn’t mention any empathy for small-business owners or kids in failing schools.
During the general-election campaign, Obama answered an interviewer’s question about whether abortion would be a “litmus test” for his judicial appointees by saying that a person who did not believe in the right to privacy, “as well as the implications for gender equality,” would not have the right judicial philosophy. In other words, a refusal to reconsider judicial decisions that even many liberals admit are hard to square with the text, original understanding, history, or structure of the Constitution is a prerequisite for a judicial nomination from Obama. (He never said anything about empathy for unborn children, either.)
Since taking office, Obama has compiled a record consistent with these early hints. Again and again, liberal policy preferences have trumped fidelity to the Constitution.
Unilateral amnesty. The most recent example came in mid-August, when the Obama administration began implementing the DREAM Act even though Congress had never passed it. The president issued an order commanding immigration agencies not to deport some illegal immigrants who were brought to this country as children and to give them work-authorization permits.
Whether or not this policy is a good idea, it is an idea that Congress has so far declined to put in law. It cannot be justified as a mere prioritization of scarce executive-branch resources, any more than a president could end the enforcement of provisions of the tax code he dislikes on that pretext. Obama understood the point well enough in 2011, when asked whether he could use an executive order to overcome congressional resistance. “America is a nation of laws, which means I, as the president, am obligated to enforce the law,” he responded. “There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as president.” It was true when he said it. It still is.
Welfare waivers. This summer has yielded another case in which the president implemented a policy that Congress never enacted, by exploiting a supposed power that nobody had ever previously contended a president had. Ever since welfare reform was enacted in 1996, states have had to ensure that nearly half of their caseload was involved for at least 30 hours a week in work, on-the-job training, job search, or similar activities. In mid-July, the Department of Health and Human Services said that it could waive this requirement.
The welfare-reform law explicitly gave the secretary of HHS the authority to waive many sections of the law — but did not include the section of the law detailing the work requirements among those waivable. This feature of the law will come as a surprise to no one familiar with the political history that gave rise to the reform in the first place. Welfare reform was enacted by a Congress that deeply distrusted President Clinton: Its fight with him over the budget had already led to two government shutdowns, and it would go on to impeach him. Work requirements were (and are) popular. That Congress would never have given that president the authority to throw out the work requirements. Prior to July, nobody ever argued that it had.
Marriage. Obama’s public position on marriage has been notoriously mutable, but in all his moves he has never found a place of sincerity or logical consistency. As a result there is no way to explain his administration’s actions on the Defense of Marriage Act in a way that speaks well of its fidelity to the Constitution.
Initially the administration claimed it would defend the constitutionality of the law in court even as it favored its repeal. After its first legal filings in the law’s defense elicited outrage from liberal activists, however, it modified that defense by abandoning arguments that had previously succeeded in court. In 2011, Attorney General Eric Holder announced that he had concluded that the law was unconstitutional — indeed, that no reasonable defense of its constitutionality could be made — and that the administration would therefore stop defending it in court.
Even on the assumption that Holder is right and the law is unconstitutional, the administration’s position is indefensible. Holder said that the administration would continue to enforce the law outside the courts — which it ought not to do if it believes it clearly violates the Constitution. And the only rational ground for believing the law is unconstitutional is that refusing to let same-sex couples marry violates the Fourteenth Amendment: that, in other words, recognizing same-sex marriage is constitutionally mandatory. Yet neither Obama nor Holder takes that position. Obama, even now that he has announced that he favors same-sex marriage, says that states should set their own policies.
Either the Constitution allows governments operating under it to define marriage as the union of a man and a woman, or it does not. If it does, then Obama is failing to defend a constitutionally legitimate law from judicial attack. If it does not, he is enforcing an unconstitutional law and telling states they may do the same. What he cannot be doing on either interpretation is protecting the Constitution or even taking it seriously.
Obamacare. President Obama fought hard for, and signed, a law that requires most Americans to buy health insurance. It was an unprecedented step. As Michael Greve writes in The Upside-Down Constitution, “the constitutional provisions that suggest a federal authority to ‘commandeer’ private parties are few, institutionally cabined, and calculated to ensure the operation of the government’s own institutions (such as the armed forces and the jury system) — not, as under [Obamacare], to protect the profitability of private corporations.”
That the Constitution authorizes the federal government to commandeer individuals in strictly limited circumstances yields the strong inference that it regards commandeering in other circumstances as improper, and thus outside its grant of power to Congress to make all laws that are “necessary and proper” to execute its constitutional duties. Nor can a command to enter into commerce be justified as a regulation of commerce, which Congress may constitutionally enact.
A majority of the Supreme Court ruled that the federal government may not order people to buy insurance. An overlapping majority of it ruled, however, that Obamacare could be read to be encouraging, rather than requiring, the purchase of insurance, and upheld it on that basis. The administration welcomed the result, naturally, but continued to insist, with the four most liberal members of the Court, including the two Obama appointed, that this order to the citizenry is within the federal government’s constitutional powers.
Obamacare II. The Obamacare legislation allows the secretary of health and human services to determine what preventive services insurance policies must cover. In January, Secretary Kathleen Sebelius said that almost all employers would have to cover sterilization and contraception — with contraception defined to include such probably abortifacient drugs as “ella.”
The mandate runs afoul of the Religious Freedom Restoration Act, a bipartisan Clinton-era law that allows the federal government to “substantially burden a person’s exercise of religion” only if it is “the least restrictive means” of advancing “a compelling governmental interest.” The act also stipulates that other laws should not be read to amend or supersede it unless they explicitly say so — which the Obamacare law does not.
Forcing someone to cover services to which he has a moral objection rooted in religion substantially burdens his exercise of religion. A marginal increase in access to contraception is not a compelling governmental interest. Even if it were, there are many ways to effect that marginal increase other than coercing employers.
Sebelius, testifying before the House, said that she had received no legal memo about religious-freedom issues before issuing the regulation. A federal judge has already issued an injunction staying the application of the mandate to a company that had sued against it, on the ground that the company has a good chance of winning the suit.
Obamacare III. Obamacare has a carrot and a stick to get states to establish health-insurance exchanges. If they don’t, the federal government will set up exchanges for them without their input. If they do, the federal government will make tax credits and other subsidies available for state residents who buy insurance on the state exchanges.
The effect of these provisions taken together, however, is that opponents of Obamacare can cripple it by blocking the creation of state exchanges. The federal government can then put its own exchanges in place, but it won’t be able to offer tax credits and subsidies for people who buy insurance on them. The legislation authorizes the credits and subsidies only for exchanges established by states. Since the credits also trigger heavy taxes on employers, states may have an additional reason not to create exchanges.
In May, the Obama administration’s IRS announced that it would make the credits and subsidies available to federally established exchanges. Defenders of its stance argue that Congress meant to accomplish this result, even if it did not actually write that desire into law. The IRS is thus placing new taxes on employers in states that have not set up exchanges even though no statute authorizes those taxes.
Libya. The Constitution vests Congress with the power to declare war. It does not require it to follow a particular verbal formula in doing so. The Iraq and Afghan wars followed the constitutional command even though Congress did not formally declare war, because Congress did authorize war. In Libya, however, Congress never voted for the military to do anything.
There are circumstances in which the commander-in-chief can engage the military in hostilities without congressional action. Nobody believes a vote would have to be taken for the president to organize resistance to an invasion of the United States. In this instance, however, the president involved the country in military action without any plausible claim that a vital American security interest was at stake. Congressional (and journalistic) debate on the propriety of this action mostly referred to Obama’s defiance of the War Powers Act, which he preposterously claimed to be following. That act is itself, however, of dubious constitutionality. The real issue is this: If the president may do what Obama did in Libya, the Constitution’s provision about congressional war powers is a dead letter.
Recess appointments. On January 4, President Obama made three appointments to the National Labor Relations Board and one to the Consumer Financial Protection Board. These were “recess appointments,” made under the president’s power to fill jobs when the Senate is not in session to provide its advice about and consent to his nominations. In this case, however, the Senate was in session. Under the Constitution neither chamber of Congress can adjourn for long without the consent of the other, and the Republican-controlled House forced the Senate to hold pro forma sessions to stop Obama from being able to make appointments without getting Senate approval.
The administration’s legal position is that the president can determine that the Senate is out of session even when it says it is in session. It says that the Senate is not “capable” of exercising its constitutional functions during these pro forma sessions. Senator Mike Lee (R., Utah), a former Supreme Court clerk who has been Obama’s toughest critic on the issue, points out that this argument is clearly incorrect: The Senate can pass bills and confirm nominees if it so chooses, even if it does not intend to conduct major business.
In the court of public opinion, the administration’s defenders press a different argument: The Republicans had subverted norms of good government by using the filibuster to block appointees, and in the case of the CFPB they had done so to force changes to the statute — an unprecedented tactic. But norms can’t trump constitutional rules, and in any case the CFPB itself breaks precedents. It is an independent agency, free of accountability to the executive or legislative branches of government, on steroids: Its director doesn’t answer to the president or a board, and its funding does not come from Congress. Appointing someone to run the CFPB when the Senate has refused to confirm him compounds the problem.
Some themes emerge from this list. In most of these cases, President Obama has bypassed Congress, rewriting laws or appointing nominees without its consent. (Even at the height of liberal power in the capital, in 2009–10, Congress was not going to enact a law making Notre Dame cover abortion drugs.) In most of these cases, too, his actions have been unprecedented. Not only has nobody taken them before, nobody has even suggested they would be legitimate before. No other president has made recess appointments during a pro forma session of the Senate, for example.
Obama’s predecessor had his constitutional lapses, too, as when he signed, and instructed his administration to defend in court, a set of campaign-finance regulations that he had previously recognized as unconstitutional. The Constitution has been imperfectly honored through most of our history, and there is no foolproof mechanism imaginable for enforcing it.
This president is testing the limits of our system. Note that our list of unconstitutional novelties includes five administration actions from the first eight months of 2012 alone. The public can put an end to this aggression in November. If Obama is reelected, especially with an uncooperative Congress, we can expect more of it.