The Whip and the Sting of the Law

Statua di Machiavelli, Galleria degli Uffizi a Firenze.

Statua di Machiavelli, Galleria degli Uffizi a Firenze.

Richard Reinsch’s post “Return to the Barbaric” leads me to think that there is indeed something different about the use of the executive power in the Obama Administration, though FDR set a new model–closing the banks and barring people from access to their savings, on the strength of nothing but the Trading with the Enemy Act of 1917. FDR also traded destroyers for naval bases, when his Attorney General, Robert Jackson, told him that those destroyers were not his property to sell or trade.  But as Reinsch and others have said, cashiering the president of GM, rewriting the law on Obamacare, and these other moves–they put this flexing of the Executive power on an entirely different plane.  He is indeed detaching himself now from the “structure” of the Constitution, with not even a faint connection to anything in the statutes.

What is striking is that it took President Obama to bring out a certain flaw lurking in the logic of the Madisonian system:  that the very things that form the “discipline of constitutionalism”–e.g, the difficulty of putting together a coalition to pass a bill–are the things that make it hard for Congress to act for the purpose of resisting a President who is grossly exceeding his powers.   And it’s curious that the Founders never anticipated the way that the party system would alter this constitutional arrangement:  During the Civil War the Republican governors became active in raising troops and overcoming the divisions of federalism in responding to the needs of Washington.  They managed to bring resources to bear, across the boundaries of the States, in a coordinated purpose of saving the national government. Washington itself was not secured until Governor Andrews got the Massachusetts 6th Regiment down there, after fighting their way past the thugs in Baltimore. When they finally landed, Lincoln said “You are the only real thing.” But now, a President abusing his authority can count on a large chunk of votes in the Congress to support him–the ties of party will rise, for them, above anything they share with people across the aisle as “members of Congress.”  The incentive to act for “institutional interests” will be undercut.   My reflexes are to oppose litigation here; for Congress should not be a mere litigant, inviting the Court to take on a position of primacy among the three branches. And yet it becomes more and more plausible that the Court can be invited in to police the separation of powers, in the way that Justice Scalia thought it could indeed become engaged in the case of the Independent Counsel (Morrison v. Olson).

In preparing for an upcoming meeting on the work of Harvey Mansfield, I find the curious thing (which I haven’t heard mentioned) is that Obama has given us the most precise example of the Machiavellian Executive–the one who knows that the law cannot do what it claims to do when it purportedly lays down universal rules. This Executive works by laying hands on particular persons and giving them the whip or sting of the law.  Those invested with this form of executive power know that their real power has little to do with statutes, but everything to do with their daring and decisiveness.

The Case Against CIA [REDACTED] John [REDACTED]

CIA

I used to think I wanted the job security of the tenured professor but now I think what I really want is to run the CIA. Nothing, but nothing, gets those guys fired. John Brennan, for one, has retained his position after presiding over a formal, frontal assault on a coordinate branch of government. He has kept it after further mocking the principle of the separation of powers by redacting a Senate report on CIA interrogation practices so thoroughly that even already public material is blotted out.

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Entropy in the Executive

The Massachusetts Constitution’s Declaration of Rights says, in its conclusion, that:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

That constitution, providing for a lower house, a Senate, and a governor armed with a (qualified) veto was, in many ways, the model for the federal Constitution drafted a few years later.

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Impeachment Won’t Stop the Debasement of Our Government

Proper as it is to dismiss President Obama’s daring his opponents to impeach him as childish posturing for his political base – secure as he is that the Senate’s Democratic majority would prevent his conviction regardless of any Constitutional evidence brought against him – nevertheless we must note that Obama risks disaster, as do children who play with matches in the presence of gasoline. His flaunting of impeachment sets up the alternative between the unfettered power of any president supported by a Senate majority and, on the other hand, the unfettered power of any Congressional majority coherent enough to remove presidents politically unpalatable to it.

Either way, Obama is opening the door to the partisan erasure of the distinction between executive and legislative power.

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The Road to Lawlessness

court 2There will be a Republican President again someday. This will happen. Democrats, having forgotten that fact, would do well to remember it. Suppose this happens too: Congress cuts taxes, stating in the preamble to the law that it intends to spur economic growth and, Laffer-style, boost revenue. The cuts fail to achieve that goal, so the President—on the grounds that a law should not be implemented in a manner contrary to its stated overall purpose—unilaterally orders the IRS to cut them some more.

After the arguments made to the D.C. and Fourth Circuits to justify the subsidies for coverage on federal Obamacare exchanges, the howls of indignation might be hard to separate from the howls of righteous vengeance. Because while the tax-cut scenario takes the case to eleven, the species of argument is the same: that the President is authorized to violate—or, more politely, let us say, reconceptualize—the letter of a law in the name of achieving its overriding purpose.

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James MacGregor Burns’ Transformative Constitutionalism

Virtually everything that James MacGregor Burns—who died on Tuesday at the age of 95 and who is rightly being honored as one of the greatest political scientists of his time—wrote about the Constitution was wonderfully provocative, incisively argued and totally wrong. He was perhaps the leading Constitutional critic of his era, a vital service, even if Burns sometimes performed it, as in his critiques of separation of powers, in demonstrable error. He was a Progressive, both a student and an advocate of what he called “transforming leadership” and a critic of institutional mechanisms that inhibited it.

Perhaps best known among students of American political thought for his critique of separation of powers in 1963’s The Deadlock of Democracy, Burns—then frustrated by the Senate’s obstruction of civil rights legislation he thought to have been publicly endorsed in the 1960 presidential election—believed he had caught James Madison in a mistake. That is hard to do, and Burns’ effort, while innovative, stumbled.

The attempt was this: If Madison, as he claimed, solved the problem of the abusive majority in Federalist 10—and this without relying on institutional blocking mechanisms—why did he need the added security of the separation of powers, which, to the extent it was unnecessary, was also gratuitously undemocratic? Fifteen years later, George W. Carey decisively answered that Madison was not trying to solve the problem of an abusive majority through the separation of powers, he was trying to solve the problem of a tyrannical government—something the Founder explicitly stated in Federalist 51 that he regarded to be a different problem.

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Bodychecking the Administrative State

It’s been great fun blogging at LibertyLaw this month, and I thank Richard Reinsch for the opportunity to opine. As I conclude my tenure as guest blogger, I want to respond to some of Greg Weiner’s very interesting and provocative suggestions about Congress and the administrative state. He is right to focus on Congress as the centerpiece of any successful reform movement, but I have a few tentative hesitations about his suggestions.

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Noel Canning, Liberty, and the Coase Theorem

Conservatives have been celebrating Noel Canning, the recent Supreme Court decision on recess appointments, because President Obama lost 9-0. But in reality the case was a loss both for liberty and the rule of law. While the result was unanimous, the reasoning in Justice Stephen Breyer’s five-person majority dramatically diverged from Justice Antonin Scalia’s four-person concurrence.  And it is the reasoning, not the result, that may shape our constitutional future.  Justice Breyer’s majority opinion elevates practices of the President and Congress over the original meaning of the Constitution.  Adoption of Breyer’s principle of constitutional interpretation threatens our liberty.

The Recess Appointment Clause provides: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Breyer’s majority opinion permitted the President to make recess appointments during intrasession recesses, not only at the end of the congressional session, and to fill vacancies that happen at any time, not only vacancies that happen during recesses.  Those holdings provide the President with potentially substantial recess appointments power, assuming that the Senate in fact takes intrasession recesses.

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Will Congress Get Its Groove Back?

This week witnessed discordant events that may signal a renewal of congressional government while illustrating the peril of relying on another branch of government—the judiciary—to revive it.

In the first, the Supreme Court on Monday granted certiorari in a case, U.S. Department of Transportation v. Association of American Railroads, that could mark the first time since pre-New Deal jurisprudence that it invalidates a law on grounds of nondelegation, the principle that Congress cannot transfer its legislative authority to another branch of government. Then, on Wednesday, Speaker John Boehner announced plans for the House to sue President Obama over non-enforcement of laws.

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The Imperial Mount Rushmore

Though it’s been a few weeks since it appeared, I would be remiss if I didn’t mention Stephen Knott’s excellent piece on whether Woodrow Wilson destroyed the office of the presidency. The clamor about the imperial presidency is on the rise with many commentators (such as George Will) and Knott’s article gives us a better understanding of its rise, as well as its implications. Knott describes the “expectations gap” that has arisen due to modern conceptions of the presidency, where we expect the president to heal the planet, rather than work to enact reforms within the institutions of constitutional government.

In response to Professor Knott I would only mention that I think Woodrow Wilson may not even deserve top billing in terms of producing the rise of presidential power.

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