By Charles C. W. Cooke
Thursday, November 20, 2014
It was all going to be so different. In the course of a
campaign based upon the nebulous promises of “hope” and “change,” Barack Obama
vowed amid the Greek columns and fainting admirers that he would restore the
country’s balance of power and lead its war-torn partisans into the sunlit
uplands of ecumenicalism and peace. In the New York Times, on November 7, 2008,
Jonathan Mahler looked forward to the new chapter. Reflecting on the outgoing
president and finding him wanting, Mahler lamented that “the power of the
president soared to new heights under Bush.” Indeed, Mahler contended, “the
assertion and expansion of presidential power is arguably the defining feature
of the Bush years.” Pondering “the Senate’s role in our constitutional
government,” Mahler concluded that it had been left “withered” and
“diminished.” “The story of the United States is in many ways the story of the
push and pull between the executive and legislative branches,” he wrote. “Will
a new president and newly elected Congress act to undo the excesses of
presidential power over the past eight years?”
Barack Obama certainly gave the impression that he would.
Noting in 2008 that he “taught constitutional law for ten years,” and in
consequence took “the Constitution very seriously,” Obama determined that “the
biggest problems that we’re facing right now have to do with George Bush trying
to bring more and more power into the executive branch and not go through
Congress at all.” “That,” the candidate assured his audience, is “what I intend
to reverse when I’m president of the United States of America.”
When it has suited his interests, he has been happy to
reiterate this position. After he was excoriated by immigration activists in
2011 for having had the temerity to follow the law, the president reminded
students at Bell Multicultural High School in Washington, D.C., that he was not
a king. First, Obama praised his audience for understanding the rules of the
American settlement, and then he launched into an impassioned defense of
separation of powers of precisely the sort that he had delivered as a senator
and as a candidate:
With respect to the notion that I can just suspend deportations through executive order, that’s just not the case. Because there are laws on the books that Congress has passed. And I know that everybody here at Bell is studying hard so you know that we’ve got three branches of government. Congress passes the law. The executive branch’s job is to enforce and implement those laws. And then the judiciary has to interpret the laws. 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, to ignore those congressional mandates would not conform with my appropriate role as president.
This was a line that, in one form or another, he repeated
more than 20 times. And yet, just one short year after he had told students
that he was hamstrung by the rules, the president did precisely what he said he
could not, refusing to “enforce and implement” those “very clear” laws and abdicating
disgracefully his “appropriate role as president.” Obama called this maneuver
“DACA,” although one imagines that James Madison would have come up with a
somewhat less polite term.
Evidently, the new approach suited the president. Soon
thereafter, he began to make extra-legislative changes to Obamacare, without
offering any earnest legal justifications whatsoever; he responded to
Congress’s refusal to raise the minimum wage by rewriting the Service Contract
Act of 1965; and, as a matter of routine, he took to threatening, cajoling, and
mocking Congress, and to informing the country’s lawmakers that by declining to
consent to his will they were refusing to do “their jobs.” In Obama’s post-2011
world, it seems, legislators are not free agents but parliamentary subordinates
possessed of two choices: either they do what he wants, or they watch him do
what he wants. Refusing assent seems to be regarded as an entirely illegitimate
option. This, it should be perfectly obvious, is the attitude not of the statesman,
but of the mugger. “Give me your wallet,” the ruffian says, “or I will take it
by force.” That progressives who once championed the man for his calm and his
virtue have taken to twisting themselves into knots in his defense should tell
us all we need to know about their broader sincerity — and his.
In foreign affairs, too, President Obama has almost
entirely reversed himself. In 2007, he told the Boston Globe that presidents
have “no power under the Constitution to unilaterally authorize a military attack
in a situation that does not involve stopping an actual or imminent threat to
the nation.” That President Bush had abused his position, meanwhile, was a
mainstay of Obama’s campaign. But, in the last three years, Obama has scoffed
derisively at anybody who reminds him of this stance, insisting at each
juncture that he is possessed of the “authority” to do exactly as he wishes as
commander-in-chief. Since 2011, our anti-war, pro-Congress president has
launched two major military endeavors without congressional approval, and has
only avoided adding a third thanks to Vladimir Putin’s last-gasp intervention
in the Syrian crisis; his attitude toward drones and his capacity to use them
in anger would make even Dick Cheney raise an eyebrow; and he has become sanguine
even toward the “open-ended war” mandates that he once viciously denounced.
This, Jack Goldsmith noted recently in Time magazine, is little short of
“breathtaking” — representing such an egregious volte face that historians will
likely “puzzle over how Barack Obama the prudent war-powers constitutionalist
transformed into a matchless war-powers unilateralist” and left “an astonishing
legacy of expanding presidential war powers.” Indeed, so utterly determined has
this president been to adopt the emperor’s mantle, the New York Times records,
that he went so far as to change his lawyers when the first collection told him
that he was breaking the law. Richard Nixon, call your office.
One wonders if there is any potentially helpful theory
that the president would now refuse to entertain. In the 2008 Times piece,
Jonathan Mahler praised “the filibuster rule,” which “allows a single senator
to halt the creep of political passions into the decision-making process by
blocking a given vote.” Once upon a time, President Obama agreed with this
commendation, holding that the institution was a great protector of American
liberty, and railing against those who would seek to curb it — illegally or
otherwise. Modest Republican efforts to limit the tool in judicial nominations,
Obama claimed in 2005, were illustrative of an “ends justify the means
mentality” that would see the “right of free and open debate . . . taken away
from the minority party” in the name of short-term expedience. “We’re here to
answer to the people, all of the people, not just the ones that are wearing our
particular party label,” he said. “What [voters] don’t expect is for one party,
be it Republican or Democrat, to change the rules in the middle of the game so
they can make all the decisions while the other party is told to sit down and
keep quiet.” Even more important: The “nuclear option” — whereby the filibuster
is abolished by a simple majority — “doesn’t serve anyone’s best interests and
it certainly isn’t what the patriots who founded this democracy had in mind.”
Senator Obama was joined in this judgment by leading
Democrats, who together made a stirring case in favor of retention. The
judicial filibuster, Harry Reid exclaimed, is “part of the fabric of this
institution we call the Senate” and an “integral part of our country’s 214 year
history.” Chuck Schumer described the device as “an important check and
balance, to be preserved not vaporized.” Dianne Feinstein warned that, “blinded
by political passions, some are willing to unravel our government’s fundamental
principle of checks and balances.” Patty Murray agreed, accusing Republicans of
“attempting to dismantle the checks and balances that our founding fathers
created.” Without the mechanism, Murray contended, the Senate might become a “rubber
stamp for the president.” And, as so often, Joe Biden put it best, proposing
that to do away with the filibuster without the approval of a supermajority was
“an example of the arrogance of power” and a “fundamental power grab.”
Those “patriots who founded this democracy” must have
changed their minds since 2005, for, when the system proved too destructive to
Obama’s agenda, he not only happily endorsed its abolition but got on board
with the “nuclear option” that he had once so vehemently denounced. The
filibuster was “not what our Founders envisioned,” Obama told the press in
November of 2013. And then he chastised those who would defend the mechanism
for their reliance upon “arcane procedural tactics.”
Today, the transformation of Barack Obama from wide-eyed
idealist to bitter imperator will finally be completed. Amid the glitz and the
artifice of Las Vegas, the last vestiges of the one we were waiting for will be
swept ignominiously away, leaving only power, cynicism, and partisanship in
their stead. There was a time when our 44th president claimed to stand for
transparency, modesty, moderation, tolerance, humility, reason, and calm.
Today, just feet from Caesars Palace, he will don the robes of the emperor and
spin minor discretion into gargantuan usurpation, all norms and touchstones be
damned. However convincing are the promises of the ambitious, Lord Acton always
has the last laugh.
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