Fight the Power Grab

By Charles C. W. Cooke

Monday, November 17, 2014

In our more frustrated moments, those of us who still hope to forestall the constitutional crisis that President Obama’s executive action is almost certainly going to provoke will resign ourselves to showing rather than telling. Thwarted by the considerable difficulty of explaining constitutional and historical norms to an audience that is either too impatient to absorb the context or too self-interested to care about anything other than its own desires, the president’s opponents eventually resort to blunt and brutal threats of retaliation. “I can’t wait until President Cruz decides to reform the tax code on his own,” we muse darkly. “And imagine what will happen in 2017,” we add, “when a Republican executive tires of the stasis and simply refuses to enforce Obamacare.” For the more cynical among the progressive champions of what Ross Douthat has accurately described as “the will to power of this White House,” such prospects should rankle. If we can’t convince the vandals that Obama is entering “extraordinarily brazen territory,” our thinking goes, we can at least remind them that he is opening the door for his opponents to tear apart everything that they hold dear.

As a didactic exercise, this approach is all well and good. And yet, I have of late begun to see some on the Right treating the tactic as more than just idle levity or debaters’ flair. Rather, they have started to mean it. Sean Trende, who is among the most interesting and level-headed writers within the conservative firmament, today proposed on Twitter that the Republican party’s “smart play on executive immigration is to shrug, then have a field day when they next get the presidency.” When I asked him for clarification, Trende told me that the system runs on “norms” and that, once broken, those norms are difficult to reinstate, and he therefore contended that Republicans should acknowledge the power grab and wait patiently until they can utilize it. “I think it is a horrifying precedent being set here,” Trende conceded, “but the die seems to be cast.” Ace of Spades’s Gabriel Malor, another man I hold in high regard, holds a similar view, often expressing excitement at the possibility that Republicans will eventually be able to take advantage of what he terms, cheerfully, “The Obama Rule.”

I am afraid that I consider this approach to be little short of suicidal, and I can under no circumstances look forward to a system in which the executive may pick and choose which laws he is prepared to enforce. On the contrary: I consider the idea to be a grave and a disastrous one, and I would propose that any such change is likely to usher in chaos at first and then to incite a slow, tragic descent into the monarchy and caprice that our ancestors spent so long trying to escape. During the last 500 years or so, the primary question that has faced the Anglo-American polities has been whether the executive or the legislature is to be the key proprietor of domestic power. In one form or another, this query informed both the English Civil War and the Glorious Revolution that followed it, and it was at the root of the Revolution in America. Cast your eyes across the Declaration of Independence and you will notice that the majority of the “long train of abuses and usurpations” have to do with the violation of the rights of assemblies by individuals who believe themselves to be the dominant arbiter of the state’s affairs.

Once, Barack Obama sided with the abused and the usurped. Reaffirming his “appropriate role as president” in 2011, Obama pushed back against those who wished him to “bypass Congress” and “change the laws” on his own, reminding his audience that “that’s not how our system works; that’s not how our democracy functions; that’s not how our Constitution is written.” Last year, he insisted vehemently that the United States was a “nation of laws” and that his critics should refuse to “pretend like [he] can do something by violating our laws.” Today, he takes the opposite view, putting his preferences above the “appropriate role” of the president — above the “system,” “democracy,” and the “Constitution” — and indeed promising to “bypass Congress and change the laws” on his own. In the meantime, suffice it to say, we have not added a “gridlock clause” to our charter. If conservatives sit idly by as the executive branch abdicates its responsibility to faithfully execute the laws, they will be complicit in the devastation of our political system.

Sean Trende is absolutely correct when he maintains that constitutional “norms” are nigh on impossible to retrieve once they have been abandoned. But, far from providing a justification for surrender, this is precisely why conservatives should refuse to “shrug” their shoulders and wait patiently for revenge. If, as he suggests, we cannot afford to watch these conceits consigned to ash, then shouldn’t we make it abundantly clear that they should be protected at all costs? Trende is also on to something when he observes morosely that “the public pays no attention to process arguments” and that Obama’s move will “be seen as a fight over immigration, which is what the Admin wants.” But, again, he is absolutely wrong to suggest that there is more to be gained by avoiding this fight than by engaging with it. The Constitution of the United States represents an explicit attempt to codify and preserve a republican form of government, and to set hard limits on the power within the system of any one person, group, issue, or institution. For champions of ordered liberty, the integrity of this codification is not vital to getting what we want: Instead, it is what we want. Passionate as I am about day-to-day politics, that a president of whom I approve might one day be able to push through my coveted agenda with little to no resistance is no consolation at all. Nor am I inspired by the prospect of my preferred leader’s being able to disregard the law if he happens to disagree with it. Instead, I am keenly aware that the rule of law and my own security are inextricably bound together. As George Orwell might have said, a strongman that one holds in high regard is still a strongman.

The “Constitution,” John Adams wrote, “was made only for a moral and religious people. It is wholly inadequate to the government of any other.” To this maxim he might have added the warning that the charter could not possibly survive unless those who swear to uphold it elect to respect its boundaries and honor its purpose. As should by now be obvious, culture matters a great deal. Almost every time the American system has been tried in South America, the inevitable tension between executive and legislature has produced a coup, the “gridlock” that is the hallmark of our Madisonian system of separated of powers serving as a boon to the presidency and as the overture to military rule. For years now, progressives have pointed to these foreign failures, predicting gravely that such an outcome was the inescapable structural product of the constitutional system itself and that it would eventually happen in America, too. Aware of the indispensable role that national habits play in any political settlement, conservatives have tended to argue otherwise, noting that the maturity and experience of the American electorate guards against such usurpation. “Which president would want to break the system?” we have inquired. And which lawmaker would be so lacking in jealousy that he would refrain from stopping him? We are presumably about to find out. It is time to gird our loins.