Carl rightly praises Jonathan Chait for criticizing Obama’s threatened abuse of discretionary authority in granting a mass amnesty. Chait is at it again in condemning the bizarre indictment of Rick Perry for threatening to veto an appropriation.
What unites Chait’s two post is the sense that, in politics, what goes around comes around. If Obama makes maximal use of executive discretion now, then a future Republican president will do the same. If Democrats try to criminalize the veto now, the Republicans will target Democratic executives in the future.
That doesn’t mean that Chait is all sunshine. Where norms are decaying (as in the case of the filibuster), he is all in favor of first doing unto others, as they would eventually do unto you. I agree, and think the Republicans should take his advice and dump the filibuster entirely the moment we get the combination of a Republican president and Senate.
But there is another way of looking at these kinds of conflicts. First Amendment claims are the first refuge of a monster. Freedom of speech is freedom to abuse. Freedom of religion is theocracy. Freedom of the press is enabling Fox News. Better to do away with it and give the opposition prosecutorial discretion good and hard. College student need to be protected from speech that might conflict with what they are learning from their liberal college professors. It is an outrage that the House Republicans are trying to impeach Obama – even though they aren’t. After all, I didn’t support the impeachment of Bush – even though I did.
I think that what unites all of these stories is not merely the confidence that what goes around won’t around, but that one side is too virtuous to have to obey the rules and the other too dangerous, and too illegitimate to deserve protection of the laws. The question isn’t, What do the rules (whether norms or constitutional amendments) allow us to do? The question is, What can we get away with doing right this second?
That what goes around comes around never enters into it, because the tactics are only legitimate when one side uses them. Chait sees two political coalitions in conflict and inevitable rotation of power between the two coalitions – though not that the two will hold power for precisely equal periods of time. From the second point of view, politics is a contest between firefighters (the left) and arsonists who want to burn our children.
From this perspective, Obama has to use whatever means necessary to get what he wants now. It also means liberals have the right to retroactively make similar use of authority illegal in the case of a Republican president. If you think otherwise, you probably also think that you should be able to put out a movie critical of Hillary Clinton during an election year. Movies critical of Republicans are fine of course. That’s artistic real free speech rather than hijacking our democracy.
All you need is the right frame of mind and the understanding that … politicized discretion only goes one way.