The danger of precedent: Liberals should worry about Obama

The Obamas board Air Force 1
The Obamas board Air Force 1 / Licensed under United States Government Work

Photo: The Obamas board Air Force 1 / Licensed under United States Government Work

By James Picht

WASHINGTON, January 20, 2014 — Liberals get defensive when conservatives criticize President Obama. Some criticism they should ignore as normal political sniping; conservatives do it, liberals do it, that’s life. But no matter how they feel about Obama’s policies, liberals should take criticism about Obama’s “high handedness” and “arrogance” seriously, not dismiss it as racist bad temper.

From the liberal perspective, criticism of vacations and lavish White House parties is just carping, and to some extent they’re justified, if amnesiac. Liberals had a fine time blasting Nancy Reagan for spending more money than most people earned in a decade then on new White House china. The funds came from private donations, but the image was bad. The criticism was petty, though.

Presidents Reagan and George W. Bush were criticized for their vacations, and they did spend much more time on vacation than Obama has. Of course, Obama’s vacations really are vacations, spent in luxurious and attractive locales. A vacation at Bush’s Crawford ranch would be, for many of us who have spent time in the vicinity of Waco, a holiday in hell. (Pace, Waco residents. Your city is friendly and pleasant, but clearing mesquite in summer is punishment for convicts, not a vacation.) The fact that Bush often made his vacations working vacations and invited world leaders there may be one reason that our international relations suffered under his administration. “Don’t take his call, Prime Minister. He’ll invite you to Crawford!”

Comparing presidential vacations and extravagances is mud wrestling for political partisans. It isn’t irrelevant to judging the character of the man, but it isn’t what’s important to how a president operates.

The conservative critique that should make liberals pay attention involves Obama’s unilateralism: the idea that he can and should interpret and enforce the law loosely and circumvent Congress to “get things done.” You might approve of what he’s doing, but what happens when someone less wonderful and less compassionate makes it into the White House?

If we don’t care about the precedence of law and strict limits on a president’s ability to define and enforce it as he sees fit, we not only unchain this president to do good, but unchain future presidents to do as they and their advisors see fit.

As a senator, Obama saw clearly the need to put strict limits on a president’s ability to use military power and to pursue national security goals. Yet as president he has been granted the power of unlimited detention without charges and the power to target Americans abroad for execution without hearing or charges. He has inherited an intelligence apparatus that can collect information on you without warrant or charges at the approval of a secret court that will never hear your side. That intelligence apparatus has powers that have grown seemingly without limits as technology has rushed onward.

If we don’t put strict limits on the national security apparatus so that someone less wonderful than Obama can’t abuse it, then what keeps someone less wonderful from abusing it?

As a senator, Obama considered Bush’s use of signing statements an unconstitutional end-run around Congress:  “Congress’ job is to pass legislation. The president can veto it or he can sign it. But what George Bush has been trying to do as part of his effort to accumulate more power in the presidency. … He’s been saying, well I can basically change what Congress passed by attaching a letter saying ‘I don’t agree with this part or I don’t agree with that part, I’m going to choose to interpret it this way or that way.’

“That’s not part of his power, but this is part of the whole theory of George Bush that he can make laws as he goes along. I disagree with that. I taught the Constitution for 10 years. I believe in the Constitution and I will obey the Constitution of the United States. We’re not going to use signing statements as a way of doing an end-run around Congress.”

And yet he has, using them less frequently than Bush, but more carefully, entrenching them as a tool of growing presidential power. He has expanded on them by his use of other interpretive mechanisms, such as statements of administration policy, and executive action, as in his selective enforcement of immigration law to create his own version of the “DREAM Act” that was rejected by Congress.

Obama isn’t our first imperial president. He won’t be the last. But as the power of executive organs like the IRS and the NSA grows, and as we accept the declining role of Congress because we happen to despise this congress, what happens when we get another [choose your least favorite president] in the White House?

There’s not enough accountability being demanded of this administration, not by the press, not by Obama’s supporters, not by Congress. That’s not just bad; it’s extremely dangerous. That should be clear even to Obama’s strongest supporters.

The greatest problem with President Obama isn’t that he has governed badly, but that he has made it easier for future presidents to govern badly. He has created precedents in his unilateral approach to a “do-nothing” or “partisan-gridlocked” Congress that permit future presidents to operate with fewer constraints. And in this he has been abetted or cheered by that gridlocked Congress, a fawning press, and supporters who are more interested in defending him than in encouraging him to strengthen the institutions of our government.

More important than what the president does is how he does it. The results of a policy can be changed, or rendered unimportant by a changing world. The importance of a Supreme Court decision isn’t the ruling, but the logic behind it, for the logic guides future decisions much more than the result. The same is true of decisions made in the rest of government.

Obamacare matters, but what matters more than the result of the policy is the way it is created, enacted and enforced. The greatest damage done by Obamacare isn’t to healthcare or to the economy, but to our governing institutions. The damage wasn’t done by the law, but by the way the law was created and the arbitrary way in which it is being enforced. That’s a legacy that liberals should stop and consider, and conservatives too.

The uncontested exercise of power is a precedent that institutionalizes that power. The blade of Obama’s rule cuts against conservatives now, but as that blade is tempered and sharpened and given the power of precedent, it will be there for others to use, liberal and conservative. That prospect should please no one.

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