During his first presidential run, Barack Obama repeatedly promised to roll back the imperial presidency that had grown inexorably over the past half century. “The biggest problems that we’re facing right now,” he explained, “have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And that’s what I intend to reverse when I’m president of the United States of America.”
Then he was elected. Since 2009, Obama has claimed unprecedented power for himself while advancing a novel argument about his duty as president to ignore the separation of powers and act unilaterally to overcome congressional gridlock. “We can’t wait,” was his refrain—though he has, of course, been unable to cite a “we can’t wait” clause in the Constitution in defense of his actions.
Consider some of President Obama’s unilateral actions that have violated the Constitution’s separation of powers by bypassing Congress—exactly what candidate Obama swore he would not do:
• He has delayed, modified, and ignored various provisions of the Affordable Care Act (commonly called ObamaCare) with barely a pretext of the legal authority to do so;
• used the Constitution’s recess appointments power to appoint officials to high-level government positions when the Senate was not, in fact, in recess, as the Constitution requires;
• granted indefinite amnesty and work permits to hundreds of thousands of illegal aliens, with the promise of millions more to come;
• violated and undermined federal bankruptcy law to benefit the autoworkers’ union (which has been detrimental to bondholders, who had priority under the law);
• appointed high-level “czars” to evade the Constitution’s requirement that high-level government officials receive Senate approval; and
• ignored a law requiring the president to give 30 days notice to Congress before releasing prisoners from Guantánamo Bay.
The rule of law has suffered in many other ways under Obama, with his administration’s repeatedly having shown contempt for the norms of our legal and political process, including an extraordinary refusal to cooperate with congressional committees charged with overseeing various parts of the executive branch. The perpetrators of the IRS scandal, one of the most egregious misuses of government authority in recent times, have escaped not only punishment but also, for the most part, investigation by the Justice Department. Various government bodies have advanced radical theories of government authority and have been reversed 9–0 in an embarrassing series of Supreme Court defeats. As Jonathan Turley, a liberal law professor who has been critical of Obama’s abuses of executive authority, has observed, “While Obama did not create the uber-presidency, he has pushed it to a new level of autonomy and authority.”
When previous American presidents were similarly aggressive, it was usually in response to a major domestic or foreign crisis, such as the Civil War, World War I, the Great Depression, World War II, or 9/11. Obama’s “we can’t wait” rationale for concentrating more power in the presidency—the public is suffering, he says, from gridlock in Congress—seems gratuitous by comparison.
One reason the Obama administration has been so aggressive is that political reality has crushed its dreams of a new era of progressive government. Obama was the first candidate to be elected as a dove on foreign policy and a liberal on domestic policy since Franklin Roosevelt in his 1940 campaign—and he and his supporters believed he had a revolutionary mandate. There was widespread sentiment among progressives that their moment had finally arrived, that they were going to permanently transform the nation and control its politics indefinitely. But their hopes for progressive hegemony were dashed by the stunning results of the 2010 midterm elections, in which Republicans seized back control of the House of Representatives in what was, by some measures, the most lopsided partisan election since 1928.
Still, Obama had won in a landslide of his own only two years earlier and would win a less commanding but still significant reelection two years later. He, his administration, and their supporters believe that they have been given the authority by the electorate to institute whatever progressive policies they can. They are especially keen on preserving the Affordable Care Act, even if it means illegally changing the law on the fly. Obama and his advisers refuse to subordinate their short-term political and ideological goals to the long-term goal of preserving the broad principles animating the American legal and constitutional system.
Granted, politicians are hardly known for considering the long-term effects of their actions, but it’s still a bit surprising just how much Obama has neglected legal norms. After all, he did repeatedly promise to protect the Constitution and enhance the rule of law on the campaign trail, and he does have real expertise on the subject, having taught constitutional law for several years at the University of Chicago.
Obama, however, faces a significant ideological barrier in keeping his campaign promise: He comes from an intellectual tradition that is very skeptical of traditional notions of the rule of law and constitutional fidelity. Liberals and progressives have long argued that there is no objective meaning to the Constitution, that theories of interpretation focusing on the Constitution’s original, objective meaning are nonsense, and that the Constitution is a “living” document that must evolve with the times. This view sometimes seems to merge with a crass legal realism that holds that all law is politics. If so, there is little reason to value constitutional fidelity (indeed, the concept itself becomes unclear) and the rule of law, or to adhere to a fixed understanding of particular constitutional provisions. “Constitutional politics” becomes reduced to politics pure and simple, and the meaning of the Constitution becomes whatever can advance the liberal and progressive political agenda.
Consider the contrasting mission statements of two leading ideological organizations for lawyers—the conservative-libertarian Federalist Society, and the liberal-progressive American Constitution Society for Law and Policy (ACS). The Federalist Society focuses on fixed principles: “that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” By contrast, the ACS focuses on amorphous and sometimes competing “values,” the specific content of which changes with time and the ability of “forward-looking leaders” to adapt to the changing needs of society. “[The ACS] promotes the vitality of the U.S. Constitution and the fundamental values it expresses: individual rights and liberties, genuine equality, access to justice, democracy, and the rule of law. The abiding principles are reflected in the vision of the Constitution’s framers and the wisdom of forward-looking leaders who have shaped our law throughout American history.” Given this, it’s not entirely surprising that Obama sees himself as a wise “forward-looking leader” who is fighting for his understanding of “constitutional principles” against congressional reactionaries.
Note, too, that the ACS doesn’t privilege the rule of law over other priorities like “genuine equality” and “access to justice.” This reflects the fact that liberal discomfort with fixed constitutional meaning is accompanied by liberal unease with the concept of the rule of law. Legal theorists ranging from classical liberals such as F.A. Hayek to progressives such as Ronald Dworkin start from the premise that law is supposed to encapsulate a set of propositions that can be applied by authorities in a coherent manner, separate from the authorities’ own ideological views, or from their biases about the particular case before them. The “rule of law” is maintained by “following the law” in ways that promote consistency and stability—and ensure equal treatment of parties. It requires both judges and law-enforcement officials to act impartially and to otherwise curb official abuse of power.
When it comes to American constitutional law, a key aspect of the rule of law is the separation of powers. The president oversteps his bounds and violates the rule of law when he tries to assume a power already given to another branch, most often when he tries to make law rather than simply enforce laws passed by Congress. The president also undermines the rule of law when for political reasons he neglects his obligation to enforce existing law.
The very ideas of the rule of law and the individual liberty that the rule of law was thought to protect came under a series of attacks in the legal academy from the left starting in the late 1970s. First came the Critical Legal Studies movement (CLS). CLS is an intellectual descendant of the Legal Realist movement of the pre–World War II period. In its crudest version, realists argued that laws and precedents are so indeterminate that they could mean whatever interpreters want them to mean. In less crude versions, legal realism meant that extra-legal considerations such as economic or class interest invade legal interpretation far more often and to a much greater extent than conventional legal scholars typically admitted. Realists often believed that objectivity in legal interpretation could be enhanced by relying on empirical (i.e., data-driven) scholarship.
Legal realism fell out favor after World War II, as it seemed nihilistic and reminiscent of the type of theory that gave aid and comfort to totalitarians such as the Nazis and Communists by undermining the rule of law. But realism made a strong comeback in three forms in the 1970s. The empirical focus of realism informed the law-and-economics and law-and-society movements, while the more radical critique of law embedded in legal realism found a home in the far-leftist CLS movement.
As law professor Charles Barzun explains, “[CLS] scholars argued that the rule of law was both impossible in practice and, in any event, undesirable in theory.” It was impossible in practice because law, regardless of the efforts made on its behalf, could never have the coherence that advocates of the rule of law espoused. And it was undesirable “because the yearning for rules was associated with an excessively individualistic ideology that sought to distinguish artificially between ‘public’ and ‘private’ realms of life.” Empirical studies couldn’t rescue the objectivity of legal theory and interpretation, because what scholars choose to study, how they choose to study it, and what implications they draw from those studies are not themselves objective.
In short, argued CLS scholars, in the end there is no distinction between law and politics, and proponents of the “rule of law” were simply hiding behind the notion of law to obfuscate the fact that they had made a political choice to defend an unjust status quo. The politics of the CLS movement were summarized well by the invitation for the first CLS scholars conference held in 1977, which declared that “law is an instrument of social, economic, and political domination, both in the sense of furthering the concrete interests of the dominators and in that of legitimating the existing order.” The more general sensibility of the movement can be summed up with the mantra “Law is politics.” If that’s what you think of law, it’s pretty obvious why the concept of the rule of law won’t appeal to you.
CLS’s attack on the rule of law informed two additional movements: radical legal feminism, espoused by pioneering law professor Catherine MacKinnon and others, and critical race theory. MacKinnon and her allies claimed that terms such as “coherence,” “consistency,” and “objectivity” obscured the fact that law has traditionally been seen through the lens of elite male lawyers. Law therefore implicitly, and sometimes explicitly—as with the “reasonable man” standard in negligence law—incorporated male norms at the expense of women. Like CLS scholars, feminists argued that the concept of the “rule of law” legitimizes and reinforces an unjust status quo, in particular a patriarchal status quo. Law does not simply reflect systemic bias against women, it makes such bias so imperceptible that its female victims have a hard time even recognizing the oppression that the law is concealing.
“Crits” and feminists were joined by critical race theorists. Perhaps the most prominent of the early “CRT” scholars was Harvard law professor Derrick Bell—whom a young Barack Obama praised at a “rally for diversity” when he was a law student at Harvard. Critical race theorists believe that such supposedly objective standards as the rule of law, precedent, and the like mask a status quo that supports the continued racial dominance of whites. Critical race theory’s critique of mainstream legal thought extended to a rejection of traditional legal analysis, with its emphasis on objectivity and logic, in favor of storytelling and the subjectivity that it entails. CRT ultimately had a very similar bottom line to CLS. “If there is any central message of CRT’s radical multiculturalism,” law professors Daniel Farber and Suzanne Sherry conclude in their 1997 book, Beyond All Reason, that message is “it’s all politics.”
It would be a gross exaggeration to say that the various groups of critical scholars carried the day, as they remain a minority even among left-leaning (that is, the vast majority of) law professors. Nevertheless, their influence has been broadly felt, both in constitutional doctrine and with regard to how liberals approach the rule of law. On the doctrinal front, critical theory has helped erode what was once a strong progressive commitment to freedom of speech, due process, and other core civil liberties. Such civil liberties are said to not have objective value, but rather are one possible political position among many. If that is true, then there is no inherent reason to prefer civil-libertarian norms limiting government’s oppressive power over more pressing competing considerations such as “genuine equality.”
Meanwhile, while modern liberal thinkers have not abandoned the rule of law, to many the concept no longer stands for such values as objectivity and consistency, for a government of laws and not men. Instead, the rule of law is taken to mean “before we can undertake our preferred actions based on purely powerful grounds, we must find some not-completely-absurd interpretation of existing law that allows us to do it.” Instead of checking to see what the law allows, you figure out first what you want to do and then look for a way to bend or stretch the law to permit it. This puts some constraint on what the government can do, as the law will stretch only so far before breaking. Ultimately, this resembles the rule of clever and politically willful lawyers more than the rule of law as traditionally conceived.
It’s hardly news that government officials want to stretch their power as far as they can without clearly violating the law. What is news, however, is that top Obama-administration officials, as well as the president himself, seem to see this as a desirable way of governing, something to brag about rather than do surreptitiously. They believe that promoting progressive political ends is more important than adhering to the law not simply as a matter of expediency but as a matter of principle.
Worse yet, as Turley writes, the Obama “administration acts as if anything a court has not expressly forbidden is permissible.” In many situations, no one has legal standing to challenge the president’s action—which means that no judge can stop the law-breaking. The prevailing attitude is that presidential action is legal if you can get away with it and it serves appropriate political ends. The president himself has frequently boasted of forging ahead with reforms without Congress’s consent, because the American people purportedly “can’t wait” for Congress to do its job, as if there is some virtue in a president ignoring the Constitution’s separation of powers so that he can enact his own agenda unilaterally. Perhaps this means that law has been reduced to politics, and the “crits” have won after all.
Ideology aside, another reason that President Obama has been especially aggressive in pursuing initiatives of dubious legality or even near-certain illegality is that he’s been able to get away with it. Previous presidents who engaged in wrongdoing have had members of their own political party who were willing to stand up and say so. Many Republicans turned on Richard Nixon as the Watergate scandal unfolded. More recently, Democratic Senator Joseph Lieberman strongly criticized Bill Clinton for carrying on an affair in the White House and then lying under oath about it.
But with Washington politics more polarized than they have ever been since the Civil War—in part because, unlike for most of American history, the Democrats and Republicans have clearly divided into liberal and conservative factions—one cannot count on partisans for one side to criticize their own. Few Republicans in Congress criticized George W. Bush’s excesses, and high-level Democratic politicians have not only failed to criticize Obama’s lawlessness, they have often encouraged it. For example, in his 2014 State of the Union address, Obama promised to circumvent Congress to achieve his policy goals. Instead of defending Congress’s institutional prerogatives and the separation of powers, the entire House and Senate Democratic caucus gave him a standing ovation.
The traditional media establishment—newspapers such as the New York Times and the Washington Post, National Public Radio, the network news operations—could have served as a check on the Obama administration’s abuses. But they have largely given up their role as an independent watchdog, having been utterly tamed by the felt need to support the political agenda of coastal liberalism. Meanwhile, on progressive blogs and pro-Obama sites such as Media Matters and Talking Points Memo, just about any issue becomes fodder for partisan and ideological warfare. As one former liberal blogger puts it: “The incentives are to play ball, not to speak truth to power. More clicks. More action. Partisanship drives clicks.”
Of course, Obama hasn’t gotten away completely scot-free, as the conservative media—from Fox News to Rush Limbaugh and other radio talk shows to hundreds of blogs—have relentlessly followed and criticized Obama’s scandals, including the constitutional ones. But the rise of conservative media may have had the perverse effect of making “mainstream” liberal reporters more hesitant to criticize the president, partly out of fear that they will contribute to a right-wing feeding frenzy, and partly because establishment outlets will feel less responsibility to cover a story if conservative media are doing so. Joan Walsh, editor at the progressive online magazine Salon, has suggested that liberals shouldn’t be too conscientious about pointing out government screw-ups when the Democrats are in power, lest they “encourage the completely unbalanced and unhinged coverage of whatever the problem might be.”
One also can’t discount arrogance as a factor in the Obama administration’s lawlessness. Of course, all presidents are arrogant; you have to be to think that you should lead the wealthiest and most powerful country the world has ever seen. Obama certainly is not exempt from this generalization. In 2006, he told a staffer: “I think that I’m a better speechwriter than my speechwriters. I know more about policies on any particular issue than my policy directors. And I’ll tell you right now that I’m gonna’ think I’m a better political director than my political director.”
But the arrogance I’m talking about goes well beyond Obama’s personality. It pervades the administration. As a leading (but anonymous) left-wing activist told the Huffington Post’s Sam Stein: “These guys are stunningly arrogant. They really believe that their s—doesn’t smell, that they have all the answers. And that arrogance continues to hurt them.”
The source of this arrogance lies, at least in part, in the attitudes of post-1970s graduates of elite universities. The Obama generation of liberals, including many of the president’s top aides and appointees, believe in meritocracy, but a meritocracy based not solely on demonstrated achievement, but on where one went to college and graduate school as well.
The cult of the academic overachiever turned up early in the Obama administration. In early 2009, the New York Times profiled Brian Deese, a 31-year-old Obama appointee. As the Times put it, Deese found himself in his first government job in charge of “dismantling General Motors and rewriting the rules of American capitalism.” As the article pointed out, Deese had no prior experience with the auto industry, was “neither a formally trained economist nor a business school graduate,” and had “never spent much time flipping through the endless studies about the future of the American and Japanese auto industries.”
So what made him qualified for such an important position? Well, he was a not-quite-graduate of the elite Yale Law School and had impressed a lot of people in the Obama campaign and Democratic policy circles with his quick mind. While Deese is surely very bright, it’s hard even in retrospect to understand why anyone would think that he was competent to make life-or-death decisions for the auto industry—unless you understand that in today’s elite East Coast culture, just being very smart and impressing the right people with your intellect and credentials means you are unofficially qualified to do just about anything. But only, of course, if you share the prevailing set of political and cultural values.
Those who reject those values (i.e., conservatives and libertarians) are dismissed as extremists who are barely susceptible to reason, if at all, regardless of their educational background. Obama and many of his advisers went to top colleges and graduate schools in the 1980s and 1990s. The political culture at these schools considered those on the far left to be within mainstream political discourse, but run-of-the-mill conservatives (known as “reactionaries”) to be, at best, on the extremist fringe. As one Harvard Law School alumnus, who started law school just as Obama was leaving, puts it, at Harvard “radical was mainstream and conservative was radical.”
I was an exact law-school contemporary of Obama’s. He attended Harvard from 1988 to 1991; I was at Yale at the same time. If anything, Harvard was considered significantly less friendly to right-of-center students than was Yale. Nevertheless, at Yale many politically active left-wing students shunned the classmates they deemed to be “reactionaries,” which meant anything to the right of moderate liberals. Any politically incorrect remark, even from an otherwise apolitical student, could lead to a gossip campaign against a student. Students could be shunned just for arguing in Contracts class that contracts should be enforced as written when his leftist colleagues thought “social justice” demanded otherwise.
While only a (significant) minority of students behaved this way, it was an accepted part of life at Yale Law School. Even the more fair-minded liberal students who were polite to their conservative and libertarian classmates—as Obama is reputed to have been at Harvard—accepted this with a shrug as part of the inevitable intellectual landscape at a school with a strongly left-leaning student body. Meanwhile, it was perfectly acceptable, socially and otherwise, to be a radical feminist, black nationalist, socialist, Communist, or any other type of radical, as long as you were on the left.
In short, attending an elite Ivy League college like Columbia, Obama’s alma mater, working in left-wing community activism, as Obama did, and then studying at Harvard Law School in the late 1980s and early 1990s was likely to give Obama a rather skewed perspective of the political spectrum. The same is true for his advisers of similar background. This perhaps explains how Obama, the most liberal president in decades, someone whose intellectual influences were all liberals and leftists, could tell supporters, with a straight face, “I’m not a particularly ideological person.” After all, at Harvard Law School, he was a centrist—meaning, in that context, a very liberal Democrat.
With this background in mind, we can begin to understand Obama’s ties to the unrepentant, extremely leftist domestic terrorist Bill Ayers and to the radical Afro-centric minister Jeremiah Wright. Obama did not find anything especially obnoxious about Wright’s radicalism, anti-Americanism, ties to Louis Farrakhan, and so on, or about Ayers’s lack of regret for his terrorist past. More than that, it seems as though Obama did not expect that anyone would find their actions and beliefs hard to stomach. If Obama had considered how the majority of Americans would respond to Wright and Ayers, he would have disassociated himself from them before they became campaign issues. But in the very liberal Hyde Park and Ivy League circles he long frequented, people with extreme left “progressive” views are more mainstream than, say, the average conservative evangelical Christian. And even revolutionary violence doesn’t discredit an individual like Ayers, as evidenced by the ubiquitous Che Guevara T-shirts on liberal campuses.
Obama’s views about conservatives can be extrapolated from his own words. During the 2008 campaign, ABC’s George Stephanopoulos asked Obama about his connection to Ayers. Obama rejoined: “I’m also friendly with Tom Coburn, one of the most conservative Republicans in the United States Senate, who, during his campaign, once said that it might be appropriate to apply the death penalty to those who carried out abortions.” So from Obama’s ideological perspective, being a conservative who once suggested he might want to promote legislation making abortion legally akin to murder is at least as problematic as being a radical leftist terrorist who tried to get his views adopted through violence. It’s no wonder he prefers to govern unilaterally rather than deal with such “extremists” as Senator Coburn.
President Obama and many of his advisers are part of a liberal intellectual class whose members typically consider respect for the Constitution and the rule of law as anachronisms at best and racist, patriarchal, and reactionary at worst. Obama came into office with a huge congressional majority, and what he and his supporters thought was a mandate to fundamentally move American society to the progressive left. Conservatives, however, have thwarted this ambition, especially after they took over the House in 2010. These same conservatives, meanwhile, are held in contempt by elite progressives. Faced with the prospect of compromising with conservatives, or “triangulating” as Bill Clinton did, Obama instead chose to unilaterally pursue as many of his policy goals as possible—and the Constitution and rule of law be damned.
