By Rich Lowry
Friday, October 11, 2019
There’s a brewing constitutional crisis, and it is the
Elizabeth Warren surge in the Democratic primaries.
Should the Massachusetts senator become president of the
United States, she will undertake a historic bout of federal activism unmoored
from any serious consideration of constitutional constraints.
This would far exceed the current “constitutional crisis”
over the Ukraine controversy. Impeachment involves the House of Representatives
exercising a responsibility clearly bestowed on it with broad latitude by the
U.S. Constitution, to punish an act by President Donald Trump that was foolish
and improper, but also squarely within his constitutional powers.
House Speaker Nancy Pelosi likes to say Trump violated
the Constitution on his call with the Ukrainian president, but there’s no
serious argument for this. The conduct of foreign policy — and horse-trading
with foreign leaders — is a core presidential duty.
The problem was mingling personal political priorities
with actions in his official capacity, a symptom of one of the worst aspects of
Trump’s presidency, namely his inability or unwillingness to distinguish
between himself and his office. Trump doesn’t think institutionally or
constitutionally.
In contrast to his carelessness and highly personalized
view of the presidency, Warren offers a carefully thought-out agenda of open
contempt for legal and constitutional boundaries. It’s not that she, a former
Harvard Law professor, doesn’t know that they exist; it’s that she doesn’t
care.
Her broad approach is if she doesn’t like something about
America, she’ll act as president to ban it or curtail it, whether she has the
legal or constitutional authority or not. This isn’t a trait personal to her.
Instead, it is inherent to progressive government, which from its beginnings in
the early 20th century strained against constitutional limits it considered
antiquated and unnecessary.
One of Warren’s signature domestic proposals is her
wealth tax. Without dwelling on the complex legal arguments, her plan is
constitutionally dubious, at best, and would instantly end up in the Supreme
Court if it ever passed.
Someone scrupulously committed to the Constitution would
want to steer clear on this basis alone, but “constitutionally or legally
suspect” is the unifying thread of much of the Warren agenda.
As David French points out, her proposed executive order
prohibiting fracking obviously runs afoul of a 2005 federal law protecting it
from federal regulation. She is promising to do something illegal, pure and
simple.
And on it goes. She says she would act unilaterally to
expand background checks for gun purchases, circumventing Congress. She wants
to tax lobbying, an activity protected under the First Amendment, in yet
another constitutionally fraught initiative. She wants to break up Big Tech, although
it’s not clear under what authority.
Tellingly, almost no one on her side says, “I appreciate
what you’re getting at Liz, but you can’t do that.”
To their credit, a couple of CNN panelists pressed her in
July on the constitutional basis of her wealth tax, and she just waved them
off. Needless to say, the op-ed pages and airwaves weren’t thick with
denunciations of her casual dismissal of the Constitution.
This gets to a marked, and annoying, hypocrisy in the
reaction to Trump’s Ukraine call. The same people who are most convinced that
it is somehow unconstitutional or illegal didn’t raise a peep when President
Barack Obama rewrote immigration law on his own after repeatedly, and
correctly, saying he didn’t have the power to do it.
To be sure, the reliable, consistent constituency for
strictly bounded executive action is vanishingly small. It amounts to about a
dozen senators, those Republicans brave enough to oppose Trump’s emergency
declaration to repurpose military funding for the border wall, the most
problematic of his executive actions.
All you need to know about how seriously most of the Left
takes the Constitution is that at the same time it’s freaking out about Trump,
it’s boosting the prospects of Elizabeth Warren, who is promising to ignore it
as a matter of policy.
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