By Kevin D. Williamson
Sunday, November 24, 2013
Conservatives have for years attempted to put our finger
upon precisely why Barack Obama strikes us as queer in precisely the way he
does. There is an alienness about him, which in the fever swamps is expressed
in all that ridiculous Kenyan-Muslim hokum, but his citizen-of-the-world shtick
is strictly sophomore year — the great globalist does not even speak a foreign
language. Obama has been called many things — radical, socialist — labels that
may have him dead to rights at the phylum level but not down at his genus or
species. His social circle includes an alarming number of authentic radicals,
but the president’s politics are utterly conventional managerial liberalism.
His manner is aloof, but he is too plainly a child of the middle class to succumb
to the regal pretensions that the Kennedys suffered from, even if his household
entourage does resemble the Ringling Bros. Circus as reimagined by Imelda
Marcos when it moves about from Kailua Beach to Blue Heron Farm. Not a dictator
under the red flag, not a would-be king, President Obama is nonetheless
something new to the American experience, and troubling.
It is not simply the content of his political agenda,
which, though wretched, is a good deal less ambitious than was Woodrow Wilson’s
or Richard Nixon’s. Barack Obama did not invent managerial liberalism, nor has
he contributed any new ideas to it. He is, in fact, a strangely incurious man.
Unlike Ronald Reagan, to whom he likes to be compared, President Obama shows no
signs of having expended any effort on big thinkers or big ideas. President
Reagan’s guiding lights were theorists such as F. A. Hayek and Thomas Paine;
Obama’s most important influences have been tacticians such as Abner Mikva,
bush-league propagandists like the Reverend Jeremiah Wright, and his beloved
community organizers. Far from being the intellectual hostage of far-left
ideologues, President Obama does not appear to have the intellectual energy
even to digest their ideas, much less to implement them. This is not to say
that he is an unintelligent man. He is a man with a first-class education and a
business-class mind, a sort of inverse autodidact whose intellectual pedigree
is an order of magnitude more impressive than his intellect.
The result of this is his utterly predictable approach to
domestic politics: appoint a panel of credentialed experts. His faith in the
powers of pedigreed professionals is apparently absolute. Consider his hallmark
achievement, the Affordable Care Act, the centerpiece of which is the
appointment of a committee, the Independent Payment Advisory Board (IPAB), the
mission of which is to achieve targeted savings in Medicare without reducing
the scope or quality of care. How that is to be achieved was contemplated in
detail neither by the lawmakers who wrote the health-care bill nor by the
president himself. But they did pay a great deal of attention to the processes
touching IPAB: For example, if that committee of experts fails to achieve the
demanded savings, then the ball is passed to . . . a new committee of experts,
this one under the guidance of the secretary of health and human services.
IPAB’s powers are nearly plenipotentiary: Its proposals, like a presidential
veto, require a supermajority of Congress to be overridden. The president likes
supermajorities, except when he doesn’t — the filibuster was not a sacred
institution, but it did give the Senate an important lever for offsetting
executive overreach. The House is designed to be an engine, the Senate a brake.
Harry Reid has just helped take the brakes off of President Obama’s lawless
agenda, for the purpose of installing friendly judges who will look the other
way when his agenda is put to the legal test.
IPAB is the most dramatic example of President Obama’s
approach to government by expert decree, but much of the rest of his domestic
program, from the Dodd-Frank financial-reform law to his economic agenda, is
substantially similar. In total, it amounts to that fundamental transformation
of American society that President Obama promised as a candidate: but instead
of the new birth of hope and change, it is the transformation of a
constitutional republic operating under laws passed by democratically
accountable legislators into a servile nation under the management of an
unaccountable administrative state. The real import of Barack Obama’s political
career will be felt long after he leaves office, in the form of a permanently
expanded state that is more assertive of its own interests and more ruthless in
punishing its enemies. At times, he has advanced this project abetted by
congressional Democrats, as with the health-care law’s investiture of
extraordinary powers in the executive bureaucracy, but he also has advanced it
without legislative assistance — and, more troubling still, in plain violation
of the law. President Obama and his admirers choose to call this “pragmatism,”
but what it is is a mild expression of totalitarianism, under which the
interests of the country are conflated with those of the president’s
administration and his party. Barack Obama is the first president of the
democracy that John Adams warned us about.
“Democracy never lasts long,” Adams famously said. “It
soon wastes, exhausts, and murders itself. There was never a democracy that did
not commit suicide.” For liberal regimes, a very common starting point on the
road to serfdom is the over-delegation of legislative powers to the executive.
France very nearly ended up in a permanent dictatorship as a result of that
error, and was spared that fate mostly by good luck and Charles de Gaulle’s
patriotism. Long before she declared her infamous state of emergency, Indira
Gandhi had been centralizing power in the prime minister’s office, and India
was spared a permanent dictatorship only by her political miscalculation and
her dynasty-minded son’s having gotten himself killed in a plane wreck. Salazar
in Portugal, Austria under Dollfuss, similar stories. But the United States is
not going to fall for a strongman government. Instead of delegating power to a
would-be president-for-life, we delegate it to a bureaucracy-without-death. You
do not need to install a dictator when you’ve already had a politically
supercharged permanent bureaucracy in place for 40 years or more. As is made
clear by everything from campaign donations to the IRS jihad, the bureaucracy
is the Left, and the Left is the bureaucracy. Elections will be held,
politicians will come and go, but if you expand the power of the bureaucracy,
you expand the power of the Left, of the managers and minions who share Barack
Obama’s view of the world. Barack Obama isn’t the leader of the free world;
he’s the front man for the permanent bureaucracy, the smiley-face mask hiding
the pitiless yawning maw of total politics.
In an important sense, the American people have no
political say in the health-care law, for example, because Congress did not
pass a law reforming the health-care system; instead, Congress passed a law
empowering the Obama administration, through its political appointees and
unelected time-servers, to create a new national health-care regime. The
general outline of the program is there in the law, but the nuts and bolts of
the thing will be created on the fly by President Obama and his many panels of
experts. There are several problems with that model of business, one of which
is that President Obama, and more than a few of his beloved experts, have
political interests. The partisans of pragmatism present themselves as
disinterested servants of the public weal, simply collecting the best
information and the best advice from the top experts and putting that into
practice. Their only political interest, they would have us believe, is in
helping the public understand what a great job is being done for them. Consider
President Obama’s observation that his worst mistake in his first term was
“thinking that this job was just about getting the policy right . . . .The
nature of this office is also to tell a story to the American people that gives
them a sense of unity and purpose and optimism, especially during tough times.”
(It never seems to have entered into the president’s head that he might have
got the policy wrong.) But of course there is a good deal more to politics than
that. For example, the president would very much like the unemployment problem
to be somewhat abated by the time of the 2014 congressional elections, but he
knows that this is unlikely to happen with employers struggling under an
expensive health-care mandate that he has not told enough of a story about. And
so he has decided — empowered to do so by precisely nothing — that the law will
not be enforced until after the elections. Neither does the law empower him
arbitrarily to exempt millions of his donors and allies in organized labor from
the law, but he has done that too.
This is a remarkable thing. The health-care law gives the
executive all sorts of powers to promulgate regulations and make judgments, but
it does not give the executive the power to decide which aspects of the law
will be enforced and which will not, or to establish a different timeline from
the one found in the law itself. For all of the power that Congress legally has
given the president in this matter, he feels it necessary to take more —
illegally. There is no obvious and persuasive legal rationale for the belief
that the president can willy-nilly suspend portions of the law or delay their
execution. There is still less reason to believe that the president has the
unilateral authority to overturn the law’s fundamental requirements, including
the requirement that all health-care plans on offer meet certain federal
regulations. Honoring the law meant breaking a key promise — “If you like it,
you can keep it” — which the president and his advisers knew all along would be
the case. What they did not know was how unpopular breaking that promise would
prove to be, and so the final breaking of it has been put off, along with the
enrollment deadline, until after the midterm elections. The administration is
transparently violating the letter of the law to see after its own political
interests. That is an intolerable state of affairs.
The president and his admirers dismiss concern over this
as so much chum for the talk-radio ravers, but it is no such thing. The job of
the president is to execute the law — that is what the executive branch is
there to do. If Barack Obama had wanted to keep pursuing his career as a
lawmaker, then the people of Illinois probably would have been content to
preserve him in the Senate for half a century or so. As president, he has no
more power to decide not to enforce the provisions of a duly enacted federal
law than does John Boehner, Anthony Weiner, or Whoopi Goldberg. And unlike
them, he has a constitutional duty to enforce the law. Representative Tom
Cotton says that the president’s health-care delay makes a deal on immigration
less likely — if the president can simply decline to enforce the provisions of
a law he fought for, why trust him to enforce provisions of a law he is
accepting only as a compromise? Representative Cotton must also of course have
in mind the fact that after Congress had unequivocally rejected another piece
of immigration reform, the so-called DREAM Act, that the president had
supported, he simply instituted it unilaterally, as though he had the authority
to declare an amnesty himself. He then did away with criminal-background checks
for those to be amnestied, also on his own authority. Strangely, the order to
halt background checks came down on November 9, 2012, the same day that John
Boehner said Republicans would seek a compromise on immigration reform.
In a similar vein, President Obama refused to cut off
foreign-aid funds to the Egyptian government, though he is required by law to
do so in the event of a coup d’état, which is precisely what happened in July
in Egypt. It might be embarrassing for the president to punish the Egyptian
military and the grand mufti of al-Azhar for their overthrow of the unpopular
Mohamed Morsi, but the law does not make exceptions for presidential
embarrassment. The president is not legally empowered to assassinate American
citizens, but he has done so, after going through the charade of drawing up a
legal argument under which he judged himself entitled to do what the
Constitution plainly prohibits. The law also prohibits the president and his
allies from using the instruments of government to persecute their rivals, but
that is precisely what the IRS has been up to for several years, as it turns
out. And not just the IRS: Tea-party activist Catherine Engelbrecht was subject
to an IRS audit, two FBI visits, an OSHA investigation, and an ATF inspection
of her business (which does not deal in A, T, or F). And although the IRS has
no statutory power to collect Affordable Care Act–related fines in states that
have not voluntarily set up health-care exchanges, Obama’s managers there have
announced that they will do so anyway.
The president not only ignores the law but in some cases
goes out of his way to subvert it. The U.S. military carried out the killing of
Osama bin Laden, but the records of that event have been removed from military
custody, where they are subject to inquiries under the Freedom of Information
Act, and moved to the CIA, where they can be kept in secrecy. He has attempted
to make “recess appointments” when Congress is not in recess and has been
stopped from doing so by the federal courts, which rightly identified the
maneuver as patently unconstitutional.
There exists a federal law called the Religious Freedom
Restoration Act, which restricts the federal government’s power to force
Americans to violate their consciences. The Obama administration is forcing an
abortifacient mandate upon practically all U.S. employers, in violation of that
law. Kathleen Sebelius, the secretary of health and human services, who is
responsible for drafting those regulations, received a number of letters from
lawmakers arguing that the mandate she was contemplating violated the law; she
proceeded anyway — without so much as getting an opinion from her departmental
lawyer.
Congress’s supine ceding of its powers, and the Obama
administration’s usurpation of both legal and extralegal powers, is worrisome.
But what is particularly disturbing is the quiet, polite, workaday manner with
which the administration goes about its business — and with which the American
public accepts it. As Christopher Hitchens once put it, “The essence of tyranny
is not iron law; it is capricious law.” Barack Obama makes a virtue out of that
caprice, having articulated for his judicial nominees not a legal standard but
a political standard requiring sympathy for politically favored groups:
African-American, gay, disabled, old, in his words.
We have to some extent been here before. It is a
testament to the success of free-market ideas that it is impossible to imagine
President Obama making the announcement that President Richard Nixon did on
August 15, 1971: “I am today ordering a freeze on all prices and wages
throughout the United States.” President Nixon created not one but two IPABs,
the Pay Board and the Price Commission, which were to be entrusted with
managing the day-to-day operations of the U.S. economy. President Nixon, too,
was empowered by a Congress that invested him with that remarkable authority,
through the Economic Stabilization Act of 1970, whose provisions were to be
invoked during times of economic emergency. There was no economic emergency in
1971, but it is a nearly iron-clad rule of the presidency that powers vested
will be powers used. That President Obama has adopted President Nixon’s
approach but limited himself to health care might be considered progress if he
had not adopted as a general principle one of Nixon’s unfortunate maxims: When
the president does it, it isn’t illegal. President Nixon’s lawlessness was
sneaky, and he had the decency to be ashamed of it. President Obama’s
lawlessness is as bland and bloodless as the man himself, and practiced openly,
as though it were a virtue. President Nixon privately kept an enemies list;
President Obama publicly promises that “we’re gonna punish our enemies, and
we’re gonna reward our friends.”
Barack Obama’s administration is unmoored from the
institutions that have long kept the imperial tendencies of the American
presidency in check. That is partly the fault of Congress, which has punted too
many of its legislative responsibilities to the president’s army of faceless
regulators, but it is in no small part the result of an intentional strategy on
the part of the administration. He has spent the past five years methodically
testing the limits of what he can get away with, like one of those crafty
velociraptors testing the electric fence in Jurassic Park. Barack Obama is a
Harvard Law graduate, and he knows that he cannot make recess appointments when
Congress is not in recess. He knows that his HHS is promulgating regulations
that conflict with federal statutes. He knows that he is not constitutionally
empowered to pick and choose which laws will be enforced. This is a
might-makes-right presidency, and if Barack Obama has been from time to time
muddled and contradictory, he has been clear on the point that he has no
intention of being limited by something so trivial as the law.
