WASHINGTON, January 19, 2014 — President Obama made clear on Saturday that he is an imperial president: “[I] want to work with Congress this year on proven ways to create jobs, like building infrastructure and fixing our broken immigration system,” he said. “Where Congress isn’t acting, I’ll act on my own to put opportunity within reach for anyone who’s willing to work for it.”
Obama accepts constraints on his power, but he has always been clear on his belief that he doesn’t have to. If they become burdensome to his efforts to promote the greater good, he is willing to ignore them. He will enforce and administer the laws as he thinks best, following always the spirit of the law as it speaks to him, not the dead letter, and his Justice Department will not object.
Michelle Obama just celebrated her 50th birthday, and she did it in royal style. President Obama has learned to appreciate the perks of power. His vacations are never anything but luxurious, and his gift to Michelle of a week in Hawaii with an Air Force version of a Boeing 757 to bring her home was royal. “Royal” does not refer just to the luxury, but to the fact that much of the tab was covered by taxpayers.
In this, he is not unlike his Russian counterpart, Vladimir Putin.
The last two imprisoned members of Pussy Riot were released from Russian prisons last month after being pardoned by President Putin. Putin’s pardons, which were also extended to former Yukos head Mikhail Khodorkovsky and thousands of others, were probably intended to deflate human rights criticism of Russia prior to the Winter Olympics in Sochi next month. This is also behind the decision not to enforce laws against the promotion of homosexuality until the Olympics are over, and his friendly comments that gays are welcome at the Olympics, as long as they leave children alone.
Putin’s pardons seem a small thing, an ordinary executive function, but he used them in a way designed to display his power. Putin can put you in prison on any charge he pleases, and he can take you out. His decision to suspend the law during the Olympics is also a clear message: The Duma can create laws, and Putin will enforce them as he pleases.
Vladimir Putin is restrained by his own interests, not by the law.
Obama’s domestic power does not reach the level of Putin’s, nor is he as arbitrary in its use. He presides over a national security and intelligence apparatus that is almost unimaginably powerful, but we have his assurances that it will not be used for evil. Whether it is or has been is almost impossible to learn.
Obama has likewise assured us that he has not abused the power of the IRS to harass conservative organizations. Mistakes happen, but they aren’t deliberate and they aren’t his. In order to ensure that’s the case, one of his political donors will oversee an investigation into the affair.
Obama, like Putin, is constrained by his own interests, not the law. He opted not to enforce DOMA, and to enforce immigration law selectively, to permit so-called “DREAMERs” to remain in the United States. His advisors assured him that he could get past congressional refusal to raise the debt ceiling by the stratagem of minting billion-dollar platinum coins and selling them to the Fed. If Congress won’t help him on his economic agenda, he’ll pursue it on his own. Millions of Americans were “condemned” under the Affordable Care Act — Obamacare — to lose their old insurance and buy policies through Obamacare exchanges. Now they have been pardoned by presidential fiat.
Congress can pass laws, and Obama might sign them, but in the end, he has successfully taken for himself the right to ignore laws he finds inconvenient. To date he has done that with immigration law, federal law on marriage rights, and at least 14 times with his own Affordable Care Act.
The Soviet Union had a lengthy constitution and a well-developed body of law, yet the Soviet state was lawless. Soviet leaders were not bound by legal restrictions and retained the power to act as they pleased. The Soviet government was extralegal, and so illegitimate.
The Obama Administration continues the 20th century tradition of an imperial presidency. The American president has, with the acquiescence of Congress and the judiciary, taken on itself more and more power that should be in the hands of the Congress. Administrative agencies like OSHA, EPA and the IRS create, enforce and punish violations of their own laws. As government has grown, this is efficient, and the burden of work that would land on Congress and the courts without these agencies would be enormous.
Congress tends to defer to the executive in matters of foreign policy and national security. We rely more and more on agencies in the Executive Branch to perform functions that belong elsewhere, and one result is that presidents now have the de facto power to create and ignore laws — their own or those crafted by Congress — as they see fit. They can openly use the law to reward friends (amnesty for “DREAMers,” for instance), punish enemies (the IRS and Tea Party-affiliated advocacy groups), and create a system of patronage that binds more and more special interest groups to the president.
By postponing in almost random fashion the obligations of different groups to buy health insurance in the Obamacare exchanges, the president has both expressed indifference to the legalities of executive power and demonstrated his power to help and hurt whom he pleases. The people who have been excused from buying insurance for now are in the position of Pussy Riot and Khodorkovsky — released at the whim of the president to suit his own agenda, not out of any interest in right and wrong.
And like Pussy Riot, most of those “pardoned” from buying insurance through Obamacare are not strongly appreciative. They recognize the cynicism that has led to their pardons and are aware that those pardons can be reversed at any time. In this there is an important lesson for America.
The illegitimacy of the Soviet state was not a function of external disapproval, or the disapproval of opposition leaders. It was a result of popular cynicism about the lawlessness of their leaders, and cynicism about the law. When the state was no longer able to at least keep its promise of raising standards of living, it was left hollowed out, supported only by brute force.
Americans aren’t as cynical as Russians about the rule of law, but this isn’t 1960, either. Obama could make a legitimate argument that the laws should be changed, and even that the administration isn’t in a position to devote the same resources to enforcing every law, but America has a formal procedure for making changes.
Just as with the initial passage of Obamacare, the administration has been more concerned about results than about how it gets them. Obamacare was passed without a single Republican vote, and aside from attempting to peel away the moderate-liberal senators from Maine, the administration preferred to steamroll the opposition rather than work with it, because it could.
In a healthy political system, means are even more important than ends. Russian leaders have never understood that, and American leaders shouldn’t emulate them. Obamacare may be a bad law, but it is the law, not an imperial fiat. It should be changed or repealed by legal processes, not by fiat. Americans should not be treated like Pussy Riot.Click here for reuse options!
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