So far, the best analysis of the half-hearted Democratic defense of the constitutionality of President Obama’s Big Amnesty executive order comes unsurprisingly, from Yuval Levin. Obama himself ducked the issue in his speech, never letting the word “Constitution” pass his lips; he left all discussion of constitutionality to his Office of Legal Counsel(OLC), which issued a 30-page defense the day of the order. Levin provides a link to that, and and he gives you a summary of its argument. He shows you that from a certain perspective, it has a strained plausibility. But the best thing he does is remind us, by quoting our Jim Ceaser, that the Constitution cannot simply be read as legalistic document, but must be also read as defending a certain structure and tone to government. I won’t try to improve upon Levin’s words and those he quotes from Ceaser, so go RTWT.

Most of the sentences in Levin’s piece correctly suggest that the order is obviously unconstitutional. The furthest he goes towards admitting that “if we strain our eyes very hard” the OLC report might be technically correct, is here:

If the Constitution is merely a technical legal document, it might (perhaps) be possible to defend this action as somehow within the bounds of the president’s enforcement discretion. But because the constitution creates a political order—a structure for the political life of an actual society—it is very difficult to sustain such a defense in the real world.

This connects with a point I made below that I want to amplify here. Obama knew the case for this is strained. He knew that up against the elementary understanding of the Constitution that emphasizes the Separation of Powers, i.e., up against the “real world” of Americans’ basic understanding of their Constitution, this would be seen by most of them as a brazen violation, and as a frontal denial of its classic understanding. But he didn’t and doesn’t care about that.

Posit, if you will, that he cares about the technical legality of what he has done. I don’t think he does: in my judgment his previous “promise” to progressives generally, and to Latino organizations specifically, that he would “resolve this,” matters twenty times more to him than the legality. But again, just posit that he does care. Posit that he is sincere about this being just within the constitutional bounds. That does nothing to change the fact that he clearly does not care about the appearance of constitutional corruption here.

A basic doctrine of our campaign-finance laws is that, with respect to our fear that big contributors are “buying votes” or otherwise controlling our representatives, the appearance of such corruption matters as much as its actually happening. Now, perhaps you think that principle has no place in interpreting the mandate for free speech in the First Amendment, or perhaps you feel, as the majority did in Citizens United, that it has to be balanced with other principles, but in and of itself, as a principle about how a citizenry should feel about its elections, it makes a lot of sense. If you at least agree with that, would not a sister principle, about how a citizenry should feel about its Constitution, also apply?

What Obama has just done, and worse, what most of our Democrat Leaders have chosen to defend, has given many American the impression that their Constitution is no longer the real law of the land. Even the principle central to its structure, the Separation of Powers, now appears to be up for grabs. Every liberal is obliged to admit that the technical arguments about prosecutorial discretion endorsed by some liberal legal scholars, or the strained comparisons with far smaller Congress-supported distantly similar actions by Reagan and Clinton, do nothing to change the basic impression most Americans will take. Why liberals think the grievous wrong of making so many Americans feel that in truth the Constitution no longer applies is somehow outweighed by helping Latinos and allowing Obama to keep a promise he never should have made, is a mystery to me.

Apparently, allowing things that give their fellow citizens the impression that our constitutional democracy is in fact run by plutocrats is terrible, but allowing ones that give them impression that it is in fact no longer bound by the Separation of Powers, is fine and dandy. Felix Frankfurter would not be impressed.

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How many such Days of Infamy like November 20, 2014, how many such liberal-endorsed disheartenings of their fellow citizens’ faith in the very basis of our society’s union, can our republic take? Well, while I meantime call upon my brothers and sisters to repent of their hatefully cavalier treatment of things I and so many Americans hold dear, the truth is no-one will know until it becomes one too many.