The Law? How Quaint!

“Change you can believe in” is working out in practice to mean: If you don’t like the Constitution’s separation of powers — ignore it.

Victor Davis Hanson
Friday, June 25, 2010

We are well into revolutionary times, but perhaps not in the way we traditionally think of political upheaval. Instead, insidiously, the law itself is becoming negotiable — or rather, it is becoming subservient to what elite overseers at any given time determine is a higher calling of social change.

Of course, progressive federal judges have been creating, rather than interpreting, law for decades. Yet seldom in memory have we seen such a systematic attack on our framework of laws as the present assault from the executive branch.

Federal immigration statutes mandate a clearly defined American border, which aliens may not cross without authorization. Yet the Obama administration not only does not fully enforce those statutes (in this regard, it is not behaving much differently from the prior administration), but also is preparing to sue the state of Arizona for implementing enforcement that follows the intent of neglected federal laws on the books. Apparently, the president believes that enforcement of existing law is a bargaining chip that can be used to obtain “comprehensive immigration reform” — a euphemism for blanket amnesty.

Other states and even cities are now marching in lockstep to boycott Arizona. Meanwhile, the president of Mexico recently blasted Arizonans from the White House Rose Garden, no less, apparently counting on the president of the United States to go along with this demonization of one of his own states. All this is eerie; it has a whiff of the climate of the late 1850s, when the federal government was in perpetual conflict with the states, which in turn were in conflict with one another, and which often appealed to foreign nations for support.

Recently, as if on cue, the secretary of labor, Hilda Solis, produced a video advising workers to contact her office should they feel that they have been shorted wages by their employers. Fair enough. But then she goes on to explicitly include workers who are not documented and to promise them confidentiality, i.e., de facto federal protection for their illegality: “Every worker has a right to be paid fairly, whether documented or not.”

“Undocumented” is part of the current circumlocution for breaking federal law and residing here illegally. In short, although Solis is a federal executive sworn to uphold existing federal law, she has decided which laws suit her and which do not. She rightly promises to pursue lawbreaking employers, but quite wrongly not to pursue lawbreaking employees.

Yet when we become unequal before the law, the entire notion of a lawful society starts to erode. If Secretary Solis has decided that lawbreaking aliens can in confidence count on her protection, then can those who don’t pay their taxes (perhaps citing some sort of prejudice) likewise find exemption from Treasury Secretary Geithner? Can citizens pick and chose their particular compliances — run red lights, but still want shoplifters arrested? Break the speed limit, but insist that cars stop at crosswalks? Do questions of race, class, and gender determine the degree to which the federal government considers enforcing existing law?

Recently in Port Chester, N.Y., a federal judge made a mockery of the concept of one man, one vote. Apparently the magistrate felt that Hispanics in Port Chester needed help to elect someone with whom they can identify along racial lines. So, to ensure the election of an Hispanic to the village Board of Trustees, the judge created a system of cumulative voting. Each voter was given six votes, and the explicit hope was that Hispanics would give all their votes to Hispanic candidates, voting on the basis of race rather than policy. Now we hear this may well become a precedent that the federal government will use to ensure diversity elsewhere.

When an “Hispanic” was duly elected as one of the six trustees, the judge and other observers were pleased that Hispanic voters had achieved the intended result. There was no thought, of course, about what constituted “Hispanic.” Does it require three-quarters Hispanic blood? One-half? One-quarter? One-eighth? Does Puerto Rican count, but not Spanish? Mexican, but not Portuguese or Basque? There was also no thought about whether such racial pigeonholing was good for the country. After all, focusing on race, while violating the cherished notion of each citizen enjoying one — and only one — vote, might also conjure up some disturbing memories from our not-too-distant past.

BP has acted in derelict fashion in the Gulf. But that does not justify the Obama administration’s decision — without a court order and without legislation passed by Congress — to ignore past legal precedent capping oil-company liability. Instead, this administration promises to “kick ass” and put a “boot on their necks” until BP coughs up, say, $20 billion in reparations. If a president by fiat can demand $20 billion from a corporation to create a payout fund, why not $30 or perhaps $100 billion? Or better yet, in South American style, why not simply nationalize BP altogether?

We saw something like this before from the Obama administration, when it bailed out the bankrupt Chrysler Corporation and by executive order overturned the legally determined order of creditors. “Senior” creditors were to have been, by contract, the first paid, while junior creditors waited in line. But the latter group included union workers. So Obama derided the senior lenders as “speculators” and simply put his own constituents and campaign donors in front of them. The first sign of a debauched society is that it does not honor contracts, but reinterprets them according to perceived political advantage.

Now there is talk of an executive decree from the Environmental Protection Agency to implement provisions of cap-and-trade legislation that Congress will not pass. Republican senators are already worried that the administration will likewise simply begin to grant amnesty to illegal aliens en masse, without introducing such a proposal to Congress, which alone has the right and responsibility to make our laws. And the recent executive order to ban all offshore drilling in the Gulf clearly circumvented the legal process. (Does the government have the right to shut down every flight if one airplane crashes, or to mothball all nuclear plants should one leak?) Instead of putting a moratorium on the sort of deep-drilling procedure and pipe fittings that BP used, the Obama administration simply issued a blanket ban on all offshore drilling — as if the real intent was not to allow the crisis of an oil spill to go to waste in the larger environmental effort to reduce carbon emissions.

What do all these ends-justify-the-means examples portend? Mostly, they reflect an effort by a technocratic class to implement social change through extralegal means if it finds that its agenda does not meet with public approval. In some sense, the Obamians have lost all faith that our democracy shares their vision, and so they seek to impose their exalted will by proclamation — as if they are the new Jacobins and America is revolutionary France throwing off the old order.

In late 2008, the liberal hope was that an elected President Obama, with large Democratic majorities in both the Senate and the House, could do just about whatever he wanted. But then a number of obstacles arose, from occasionally recalcitrant Democratic legislators to bothersome things like filibusters. In response, Obama was not content with achieving his liberal ends, but sought to change the very means of obtaining them; even New York Times columnists suddenly resented the calcification of American politics, and pointed to the ease with which dictatorial China can simply impose green change.

Note the logic of all this. Federal officials determine a supposed good and then find the necessary way to achieve it. The law be damned. “Diversity,” unions, environmentalism — any of these anointed causes trumps the staid idea of simply following the letter of the law.

The final irony? It was law professor Obama who campaigned on respect for the rule of law as he serially trashed elements of the Bush administration’s war on terror — almost all of which he subsequently kept or expanded. Note how what was deemed illegal before 2009 has suddenly become quite legal and worthy of emulation and indeed expansion.

As Obama’s polls continue to erode and congressional support for his agenda further dwindles, expect his cabinet to continue to seek ways around the enforcement of existing law. You see, in the current climate, the law is seen as retrograde, an obstacle to the advancement of long-overdue social change — which is to be implemented by a law professor and a past fierce critic of George Bush’s supposed constitutional transgressions.

While the media still rail about fanciful threats to constitutional stability from right-wing Tea Party types, we are getting real usurpation — but with a hope-and-change smile.