By Yuval Levin & Ramesh Ponnuru
Monday, September 26, 2016
This election cycle has left many Americans worried about
the state of our republic. Vast swathes of the citizenry are clearly
frustrated, dissatisfied, and increasingly alienated from the political system.
The major parties’ primary processes have yielded a nightmare of a general
election, featuring two exceedingly unpopular candidates, each of whom exhibits
some mind-boggling character problems.
For some observers, the concern runs even deeper. They
worry that if one of these candidates is elected, our constitutional system
will be endangered and an effectively autocratic presidency will become a real
possibility in America.
This kind of concern has been raised almost exclusively
with regard to the prospect of a Trump presidency. Many liberals, and even some
non-liberals, have suggested that Donald Trump is a threat to democratic,
constitutional government in America — what the Founders and Lincoln called
“republicanism.”
They have a point. Trump inclines to autocratic rhetoric
about how only he can solve the country’s problems. He clearly admires foreign
strongmen. He is also erratic and unpredictable and tends to disrespect the
arduous process of democratic decision-making and the restraints it involves.
He argues that American politics and government in our time are in a state of
such utter dysfunction that they should be blown apart. These certainly do not
sound like the views of a person with a deep esteem for the constitutionally
limited role of the president or for the delicate balance of our system of
government.
But the observers who raise these concerns tend to
perceive such dangers only with regard to Trump, whom they consider a singular
menace. Hillary Clinton, they say, is by contrast a run-of-the-mill liberal
politician. As the libertarian writer and humorist P. J. O’Rourke put it this
spring in endorsing Clinton, she may be “wrong about absolutely everything, but
she’s wrong within normal parameters.”
It’s true that Hillary Clinton is a mainstream
contemporary liberal, albeit a disturbingly unethical one. She stands out for
decades of brazen and unscrupulous dishonesty wielded to advance her and her
husband’s political and financial interests — for curiously lucrative
investments explainable only by files that have conveniently gone missing, for
vicious character assassination against victims of Bill Clinton’s misogynistic
abuses of power, for recklessness with national secrets in the service of
protecting personal secrets. These would be alarming traits in a president. But
the constitutional order could likely withstand, as it has withstood in the
past, presidents with similar traits.
Instead, it is precisely in the way in which Clinton
seems normal that she poses a serious danger to American democracy. The
mainstream contemporary liberalism she represents so well is itself a threat to
constitutional government in America. And it is a more concrete and specific
threat than Trump — with his bizarre inclinations, his ignorance and
carelessness, and his sheer unpredictability — can pose.
Mainstream liberals now advance a vision of American
government that is increasingly contemptuous of our system’s democratic
character and that seeks to break through the restraints of the constitutional
system in pursuit of their policy ends. They advance this vision in three key
ways.
***
First, contemporary liberalism has come to ardently
champion executive unilateralism. In some respects, this is nothing new. Modern
progressivism has always idolized the presidency. Progressivism, as Teddy
Roosevelt approvingly put it more than a century ago, is “impatient of the
impotence which springs from over-division of governmental powers, the
impotence which makes it possible for local selfishness or for legal cunning,
hired by wealthy special interests, to bring national activities to a
deadlock.” It therefore “regards the executive power as the steward of the
public welfare.”
This enthusiasm has waxed and waned, and it is always
stronger when Democrats are in the White House. But in the Obama years, it has
reached heights unprecedented since at least the early days of the New Deal.
Voicing the same kind of impatience TR did with the slow pace of American
government, President Obama has repeatedly asserted his power to act alone.
“We’re not just going to be waiting for legislation in order to make sure that
we’re providing Americans the kind of help they need,” he told his cabinet in
2014. “I’ve got a pen and I’ve got a phone,” he continued, pledging to use the
federal bureaucracy to advance his agenda on his own if he had to.
And he has frequently thought he had to. The starkest
exemplar is surely a set of executive actions on immigration, taken in 2012 and
2014, that sought unilaterally to normalize the immigration status of roughly
half of the 11 million or so immigrants who reside in the U.S. illegally. Their
status has been the subject of a raging national controversy for well over a
decade, and Congress had considered and rejected legislative action on the
subject several times in this century. But the president decided time was up
and he would act alone — even though no previous president had considered
unilateral action on this scale constitutionally permissible, and even though
Obama himself had on numerous occasions expressed agreement with this
consensus.
In justifying these actions, Obama claimed merely to be
setting a policy on how the executive branch would exercise its prosecutorial
discretion. But he repeatedly undercut this justification by referring to his
impatience with Congress and describing his own steps as a substitute for
legislation. “To those members of Congress who question my authority to make
our immigration system work better or question the wisdom of [my] acting where
Congress has failed,” he said, “I have one answer: Pass a bill.”
This retort was, of course, not an answer at all but an
admission that the president had exercised a fundamentally legislative power in
violation of the basic structure of our constitutional system. A federal
appeals court has since suspended his order, deeming it unconstitutional, and
an evenly divided Supreme Court has for now sustained that suspension. But the
president and his party continue to insist it is an appropriate use of executive
power. Indeed, Hillary Clinton thinks it doesn’t go far enough. “If elected
president,” she said in a written campaign statement in April, “I will do
everything I can to protect the President’s executive actions and go further to
bring more people relief and keep families together.”
Immigration has by no means been the only arena in which
President Obama has acted alone and beyond the authority of his office. In the
implementation of Obamacare, for example, he has repeatedly altered the
substance of the statute to bend it to his will — suspending or refashioning
mandates, creating exemptions and waivers where none existed in law, and even
providing public dollars to insurance companies without a congressional
appropriation. In one instance, in 2013, the House of Representatives moved to
codify in law a year-long delay in the law’s employer mandate that the
president had unilaterally created. But instead of welcoming the move, the
president threatened to veto the measure because it was unnecessary in light of
his executive action.
“Net neutrality” regulations on Internet-service
providers were the subject of another long-running debate. Congress never
showed much interest in enacting them, so President Obama directed the Federal
Communications Commission to implement them using the legal pretense that a
deregulatory law enacted in 1996 gave the agency all the authority it needed.
Over the years, congressional support for a ban on discrimination on the basis
of sexual orientation has grown — but not fast enough for the Obama
administration, which has had the Equal Employment Opportunity Commission
pretend that a ban was implicit in the Civil Rights Act of 1964.
This kind of executive unilateralism obviously did not
begin with Obama. And there were certainly times when George W. Bush also
asserted the authority to act (specifically in foreign and defense policy)
without involving Congress. But these were debatable extensions of presidential
power in arenas where the executive was indisputably intended to be most
powerful in our system. In the Obama years, we have repeatedly seen such
assertions in what are plainly legislative realms — and Hillary Clinton, as the
good mainstream liberal she is, would surely seek to press those further.
***
The second way contemporary liberalism threatens our
constitutional order is closely connected to the first: Today’s Left is the
party of the administrative state, which is often the means by which executive
unilateralism operates but is also far more than that. The term “administrative
state” refers to the tangle of regulatory agencies that populate the executive
branch, including agencies that are at least nominally “independent.” They
increasingly govern beyond the control of the other branches and therefore at
times genuinely outside the confines of our constitutional system.
These agencies frequently operate by issuing rules and
regulations: several thousand of them every year. These rules are supposed to
implement federal laws, but both the growing vagueness of major legislation and
the growing assertiveness of the regulators have increasingly meant that the
agencies basically legislate through their rules. Some of them then also
adjudicate disputes arising from their own implementation of these rules,
effectively lodging legislative, executive, and judicial power in a single institution.
“The accumulation of all powers, legislative, executive,
and judiciary, in the same hands, whether of one, a few, or many, and whether
hereditary, self-appointed, or elective, may justly be pronounced the very
definition of tyranny,” James Madison wrote in Federalist No. 47. Many Americans subject to the jurisdiction of
particularly aggressive regulatory agencies might well agree. But the power of
such agencies has been growing by leaps and bounds in the Obama years.
Two especially clear illustrations have been the
president’s energy and environmental agenda and his approach to financial
regulation. Without congressional authorization, the administration has used
the Environmental Protection Agency, the supposedly independent Nuclear Regulatory
Commission, and other agencies to pressure energy producers, the auto industry,
power utilities, and others to toe the president’s preferred line. In one
particularly egregious instance, the EPA moved in 2014 to require the states to
regulate electricity production and consumption to meet a set of arbitrary
carbon dioxide–emission targets — under threat of restricting their residents’
access to electricity.
Meanwhile, the administration’s implementation of the
Dodd-Frank financial-regulatory reforms has empowered both old and new agencies
to legislate, regulate, and adjudicate immensely complex and highly significant
changes in federal law with very little oversight or accountability. But these
are hardly the only arenas in which the administrative state is operating
beyond the limits of our constitutional system. The immense freedom enjoyed by
administrative agencies is a much more concrete and practical threat to our
constitutional democracy than even the prospect of an incompetent demagogue in
the White House — and it is actively championed and endorsed by Clinton and her
party.
Increasingly, these agencies have absorbed portions of
the “power of the purse,” which is supposed to belong exclusively to Congress.
Some of them fund themselves through fees. When congressional Republicans
sought to use Congress’s funding power to prevent the immigration bureaucracy
from enforcing President Obama’s unilateral policy, one obstacle in their path
was the fact that the fees that the bureaucracy charges go directly to it
rather than to the Treasury, and so it could continue to operate as it wished
without a congressional vote to fund it. The Consumer Financial Protection
Bureau was the Left’s most prized achievement within Dodd-Frank. Simultaneously
with its creation, it was given a statutory right to funding from the Federal
Reserve rather than through congressional appropriation. In effect, it is an
independent agency within an independent agency, well removed from effective
congressional oversight.
The Obama administration has also pioneered another way
for the government to direct money as it wishes without the involvement of
Congress: reach legal settlements that include “voluntary” donations to
selected nonprofit groups. Liberal organizations have received millions of
dollars from Bank of America thanks to one such settlement.
The contemporary liberal legislative agenda mostly
consists of granting these agencies more power and making them less
accountable. Much of Obamacare and Dodd-Frank consisted of open-ended
delegations of power to the bureaucracy. The administration’s contraceptive and
abortive-drug mandate, which has caused so much controversy, began this way.
Even the extremely liberal Congress of 2009–10 that passed Obamacare was not
willing to say that the Little Sisters of the Poor should have to cover
contraceptives and abortifacients for their employees — and members of the thin
majority that voted for that law have said they would not have voted for it had
it included such a provision. The law did, however, allow the secretary of
health and human services to make “preventive health care” services mandatory
for employers, and that’s how the administration used its authority (and how a
future administration could decide that coverage of surgical abortions is
mandatory, too).
The courts cannot, for a number of reasons, be expected
to keep the modern state running according to perfectly Madisonian procedures.
But they have pushed back on many of the Obama administration’s dubious legal
claims. The administration has lost unanimously at the Supreme Court 44 times,
setting a record. But the administration has not just sought to make its
policies independent of Congress; it has also sought to insulate them from
judicial scrutiny.
It has sent “guidance letters” to interfere in the
disciplinary policies of schools and universities and, recently, in their
policies regarding the use of bathrooms and locker rooms as well. These letters
are supposedly not regulations and thus not subject to the notice-and-comment requirements
that allow for some modest transparency and accountability in the regulatory
process. They are also less subject to judicial review and less transparent in
general: They don’t force their recipients to comply, after all; they just
strongly suggest that the recipients will be safer if they do.
Deferred-prosecution agreements, whose use is on the rise, are another way to
regulate off the books: They are a kind of plea bargain in which a company
agrees to undertake whatever the government asks in return for a reprieve from
legal harassment. The EPA’s power-plant regulations were designed to bypass the
courts in a different way: The hope was to make them a fait accompli before
they drew an adverse ruling.
***
If Clinton makes less use of such maneuvers, it is likely
to be for a troubling reason. The attitude of the judicial branch is itself
changing in a way that threatens the capacity of the courts to defend our
constitutional system — and once again it is the mainstream contemporary
liberalism Hillary Clinton represents that is driving the problem.
This is the third way in which that liberalism is a
threat to American constitutional democracy. Liberal judicial philosophy
understands the courts, like the executive branch, to be in the business of
advancing what is properly understood as a legislative agenda. In essence,
liberals want everyone but Congress — at least so long as they do not control
it — to advance such an agenda. This preference leaves them with an entirely
consequentialist attitude toward the courts, and they are increasingly
uninterested even in making a case for such an attitude as a form of
constitutional interpretation.
In the 2014–15 Supreme Court session, in which both a
health-care-related case (King v. Burwell)
and a same-sex-marriage case (Obergefell
v. Hodges) were decided in ways that affirmed important liberal policy
goals, the liberals on the Court made for a kind of silent majority. In each
case, they allowed a Republican appointee who sided with them (Chief Justice
Roberts in the first case, Justice Kennedy in the second) to pen a convoluted
opinion that sought to draw some link between the outcome and some kind of
legal or constitutional principles, and they did not even trouble to write in
concurrence or to articulate a liberal interpretative approach that would
independently justify the outcome.
Old tropes about judicial “activism” and “restraint” can
obscure the root issue of judicial lawlessness. Whether in “actively”
overturning acts of Congress or state laws or in showing “restraint” and
affirming a statute or regulatory action they approve of, liberal judges now
frequently pursue substantive policy outcomes rather than advance some
particular understanding of our constitutional system and its limits. And those
policy outcomes are almost always precisely the same ones liberals pursue
through a hyperactive presidency and an overreaching administrative state.
This aggressive progressivism threatens our
democratic-republican form of government because it begins by seeing the
restraints on power inherent in our constitutional system as obstacles to be
overcome. It (correctly) perceives that they can best be overcome by weakening
the Congress and strengthening the executive and by using the courts as an
instrument for both of those ends — thereby making the courts both too strong
and too weak to properly serve the constitutional system.
Such contempt and disregard for Congress (the most
democratic branch) and for the limits on the powers of the other branches is
contrary to the design and aims of our Constitution, and it subverts
accountable government and thereby leads not only to a weaker democracy but
also to public policy that is more poorly thought out and less effective.
***
Liberals generally justify all of these work-arounds that
subvert normal democratic politics and constitutional processes by claiming
that they are but responses to the alleged dysfunction, extremism, and nihilism
of conservatives. But such complaints amount to little more than the kind of
impatience with our system — and with the very existence of opposition to their
ideas — that progressives have articulated since at least Teddy Roosevelt.
Conservatives oppose many liberal policies and do use the mechanisms of our
constitutional system to attempt to prevent and reverse them. It’s true that
our system greatly empowers such opposition: It is frankly premised on the
notion that most policy ideas are bad ideas and that making change slow and
difficult is likely to serve the country.
That the Constitution makes the work of progressive
ideologues frustrating is not an excuse for ignoring and subverting it. That
the constitutional system will not acquiesce in its own debilitation is not a
justification for debilitating it. Arguments for doing so amount to
unprincipled excuses for lawlessness. They make elected officials less
responsible, and they are expressions of an impatience with constitutional
democracy, not a defense of it.
This is how mainstream liberalism now subverts and
threatens our democracy. It is nothing new, but it has gotten significantly
worse in the Obama years. It threatens to get only more so under Hillary
Clinton, who makes no secret of wanting to use the powers of the presidency to
further distort all three branches of our government to better enable liberal
governance.
And it is not as though we are giving up government
according to the constitutional template in favor of living under the wise
edicts of an enlightened elite. The policies that the liberalism of our era
yields are deeply unwise and often unjust, and their unwisdom and injustice are
connected to their flouting of constitutional forms. Policies ordered by the
courts are likely to be more extreme than the policies that would result from
democratic give-and-take: Witness our abortion laws, some of the most
permissive in the world. Policies developed by bureaucracies and imposed
through subterfuge are likely to deform the institutions to which they are
applied, as when universities start policing professors’ speech to compel
compliance with the latest missive from Washington. Agencies are less likely to
act with restraint when their projects have not been subject to the discipline
of winning majority support in the House and the Senate as well as approval
from the White House. Today’s version of progressive government — the version
to which Clinton is committed — is bound to be experienced by millions of
citizens as divisive, alienating, out of control, and even corrupt.
This truth hardly negates Donald Trump’s very significant
problems. He, too, is not well suited to filling the role that our
constitutional system envisions for the federal government’s chief executive.
But it does mean that concern for our constitutional system and our democracy
cannot amount to a case for Hillary Clinton. Trump could surely do great harm,
though no one really knows what he would try to do or whether he would prove
capable of doing much at all. Clinton, meanwhile, is an eager champion of a
political vision deeply hostile to American constitutionalism and, unlike
Trump, is also likely to be able to bring into power alongside her, or to
retain in their positions, hundreds of other committed liberals who share that
hostility and have the expertise and experience to do something about it from
various politically appointed perches in the executive branch.
***
So what is a constitutionalist to do? In this
presidential election, there are no good options. But this year presents us
with more than a presidential election. At the heart of the Left’s ambitions,
and at the core of many of the troubles bedeviling our constitutional system
today, is the weakening of the Congress. That weakening has been driven in part
by dereliction on the part of members of Congress from both parties and in part
by aggressive hostility from the other branches — and particularly the
executive.
Restoring constitutional government will be a long slog.
But it is perfectly clear that it requires a strong and assertive Congress, at
the very least to resist the ambitions of the other branches but ideally also
to restore the prerogatives of the first branch — to rein in the administrative
state and the increasingly lawless executive and to begin to bring our
constitutional system back toward its proper balance.
However constitutionalists end up voting for president,
it is imperative that they elect a Congress so inclined. This year, given the
options, they may be able to do no more than that. But they must make sure they
do no less.
No comments:
Post a Comment