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Book Review: Lawless, by Prof. David Bernstein

Book Review: Lawless, by Prof. David Bernstein

Is A Devastating Critique Of Obama’s Governance By Raw Power

Professor David E. Bernstein has written a great last-minute Christmas present or belated Hanukkah gift.

Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law is sure to ruin the holiday for whoever reads it – Republicans because it confirms President Obama has run roughshod over Congress and the Constitution, and Democrats because it confirms what they have so long denied.  Which is why everybody should read it, digest it, debate it and institute changes to prevent future presidents of any party from doing such damage again.

Bernstein teaches Constitutional Law, among other things, at George Mason University School of law, and his easy facility with technical, legalistic topics makes Lawless accessible and understandable without eliding over details.

The picture Bernstein paints so adroitly is of an unprecedented and unlawful consolidation of power in the executive, and a president unrestrained by his own promises, by custom, by standards of legal ethics, by statute or by the Constitution.

Negating The Senate’s Confirmation Power

President Obama did not take long to abandon the patina of restraint and unity from his campaign.  Running in large part as the anti-Bush, candidate Obama often promised to forego prior presidents’ dubious methods once he was president, including President Bush’s use of “czars” to avoid Senate confirmation hearings for senior advisors.

Despite his promises, President Obama vastly expanded the use of unconfirmed senior advisors, prompting John McCain to say he has “more czars than the Romanovs.”  In addition, Obama has delegated his czars responsibilities well within the constitutional requirement for Senate confirmation, and the czars themselves have at times disregarded any limitations at all on their own power.

President Obama’s car czar forced GM CEO Rick Wagoner to resign, and took over supervision of GM’s day-to-day business; his climate czar was more powerful than the confirmed head of the EPA; his Urban Affairs czar coordinated “all aspects of urban policy;” Obama’s longtime family friend was given a $400 million budget as food czar; his health reform czar coordinated healthcare reform and usurped the Secretary of Health & Human Services’ portfolio; the automotive recovery czar distributed billions of dollars from the Recovery Act; his second car czar – a United Steelworkers alumnus – said “we kind of agree with Mao, that political power comes largely from the barrel of a gun”; he appointed Elizabeth Warren as consumer protection czar with power to create and then lead an entire new agency, the Consumer Financial Protection Bureau.

Elizabeth Warren Keystone Vote

Senator Elizabeth Warren

The Senate is empowered to confirm or reject key executive advisors to ensure they are qualified and fairly reflect the beliefs of the populations of a majority of the states.  Obama could not be bothered to select nominees accountable and palatable to the majority.

Usurping Congress’s Legislative Power

To protect this unconstitutional prerogative, President Obama broke another campaign promise.  President Reagan began the practice of using signing statements to convey the executive’s position on legislation being signed into law, and every president since has used them.  Both sides of the aisle questioned signing statements’ constitutionality and propriety when George W. Bush used them to excess.

Candidate Obama promised not to use signing statements at all.  At a campaign stop he told an audience member, “[w]e’re not gonna use signing statements as a way of doing an end-run around Congress.”  He wrote to the Boston Globe, “I will not use signing statements to nullify or undermine congressional instructions as enacted into law.”  Nevertheless, when Congress defunded President Obama’s czars, he attached a signing statement deeming the legislation unconstitutional.

Every candidate makes and breaks promises, sure.  But this signing statement was egregious not only because it sought to perpetuate his prior broken promise not to use czars, but because it is substantively indefensible.  There is no question Congress is entitled to fund however many or few executive staff as it chooses.  Bernstein quotes Fordham Law professor Aaron Saiger as saying the argument that Congress “has a constitutional duty to fund a presidential staff as large as the President might desire” is “frivolous.”

Defending The Indefensible

Lawless describes a disconcerting string of such legally indefensible, borderline unethical arguments coming from the Obama Administration.  When Congress blocked his appointments to the National Labor Relations Board and consumer Financial Protection Board, Obama argued he could make recess appointments when the Senate was not in pro forma session, and lost 9-0 at the Supreme Court.

In Citizens United, President Obama’s first Solicitor General shocked the Court by arguing the government could ban corporations from publishing books advocating for a particular candidate.  After the Court ordered reargument the new Solicitor General argued the government could ban corporations from publishing advocacy pamphlets or a book resembling a lengthy pamphlet.  The new Solicitor General was Elena Kagan, now a Supreme Court Justice.

Elena Kagan Official Supreme Court Photo

Supreme Court Justice Elena Kagan

In other circumstances, President Obama disdained even to contrive a pretense of legitimacy.  When Chrysler went bankrupt, Obama cut unionized auto workers’ losses by forcing senior debt holders to forego their rights and absorb the losses instead.  When some bond-holders refused to surrender, they say, the White House threatened that “the full force of the White House press corps would destroy [their] reputation if [they] continued to fight.”

Faced with a wave of small businesses dropping employee health care because of rising costs to meet the Affordable Care Act’s mandates, in 2013, Obama moved enrollment deadlines from January 1, 2014, to 2015 – after the 2014 election.  Confronted with a massive backlash after insurance carriers began cancelling policies that failed to meet the ACA’s minimum standards, Obama provided “guidance” to state insurance commissioners asking that they allow non-compliant policies to remain in force for an extra year.  Neither of these executive amendments to the ACA have better than a nominal defense.

Hiding From The Public

All of this has been done behind a veil of secrecy.  As Senator Ted Cruz describes in his Forward to Lawless, shortly after taking office, President Obama decried “too much secrecy in [Washington, DC]” and vowed to “creat[e] an unprecedented level of openness in government.”  He has claimed to run “the most transparent administration in history.”

Yet Obama took the unprecedented step of consolidating review of Freedom of Information Act requests in the White House.  According to Senator Cruz:

This unprecedented move allowed the president to filter politically sensitive information, which of course prolonged the release of any such information to the press and public in violation of FOIA disclosure deadlines. Needless to say, such a maneuver is not in the spirit of FOIA, nor is it remotely in line with Obama’s verbal paeans to transparency.

Sadly, this is just the tip of the iceberg. Abusive and covert behavior has proven to be the rule, rather than the exception, in this administration. But don’t take it from me. Listen to some of the president’s most lavish supporters—the media. According to the San Francisco Chronicle, the president “had a decidedly fraught relationship with media scrutiny” from the beginning of his first term.  It would only go downhill from there. By the end of four years, one Atlantic writer had seen enough:

Obama’s first term has in fact been rife with just the sort of opacity that breeds corruption, obscures misdeeds, and undermines public trust in government. Far from being praiseworthy, the prevailing executive-branch attitude toward secrecy is an abomination, as is evident from even a cursory look at its real-world manifestations. . . . Contrary to its claims, the Obama Administration just may be the least transparent in American history

Conclusion

This is only a taste.  Passing the Affirmative Care Act through reconciliation, intimidating the Supreme Court during its deliberations over the ACA’s constitutionality, politicizing the Department of Justice’s hiring practices and defense of politically disfavored legislation, suppressing conservatives’ 1st Amendment rights through the IRS, dictating speech codes to universities, denying young men due process of law; Lawless exhaustively documents (there are roughly 45 pages of footnotes), explains and provides context for Obama’s rejection violations of the Constitution, statute and custom.

[Obama Immigration Executive Action Speech]

[Obama Immigration Executive Action Speech]

In his conclusion, Bernstein recalls that George Washington repeatedly relinquished power.  Washington could have been king after the revolution or president for life, if he had wished it.  Instead, Washington’s principled reticence was itself revolutionary, and a model for a century-and-a-half:

Washington’s willingness to voluntarily turn over the reins of power marked the first peaceful democratic transition in the Western world since the heyday of the Roman Empire. His voluntary term limit set a precedent that lasted until Franklin Roosevelt sought a third term in office on the cusp of World War II in 1940.

Phil Gramm and Michael Solon wrote in the Wall Street Journal on Monday, December, 21, that “[t]he Obama legacy is built on executive orders, regulations and agency actions that can be overturned using the same authority Mr. Obama employed to put them in place.”  True enough, and where there is a lawful basis for doing so, much of Obama’s agenda should be rescinded without delay.

But Lawless makes clear that the next president cannot continue President Obama’s erosion of the rule of law.  Republican or Democrat, whoever holds the Oval Office in 2017 should work with Congress to pursue his or her agenda, whether that be expanding, amending or revoking Obama’s legacy.

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Comments

And why, pray tell, would the next president restrain his/her use of executive privilege? Given that G.W. and Obama have demonstrated that the excessive use of the privilege will go largely, if not completely, unchallenged, other than the next president’s respect for the rule of law (which is extremely unlikely), he/she is almost guaranteed to rule even more through executive fiat. It won’t be long before we can send the legislature home (they only work a little over 100 days out of 365 anyway and don’t get much done in THAT amount of time) and let the president rule the country from the oval office. It’s a lead pipe cinch that the largely ignorant sheeple will not recognize what they’ve lost and try to take it back.

    Matt_SE in reply to dogbert. | December 24, 2015 at 12:34 am

    And this is why I claim that Obama is unimpressive: his victories have been won because he stood unopposed. Congressional Republicans are mostly corrupt or cowards.
    The lesson of the Obama years is that it is REPUBLICANS who need to clean house.

“Republican or Democrat, whoever holds the Oval Office in 2017 should work with Congress to pursue his or her agenda, whether that be expanding, amending or revoking Obama’s legacy.”

“Should.” And there’s the rub.

The next president “should” indeed work with Congress to pursue his or her agenda (and I do believe there is at least one Republican candidate who will do exactly that).

But precedent has been set. How do you undo that?

Pass legislation that requires that any executive agency regulation must also pass through Congress before it is considered law? Pass legislation that requires that any executive order that affects anyone outside the executive branch must also pass through Congress before it is considered law?

Those are ideas, but what if a president won’t “cooperate”? Clearly, a Republican president is always going to be more “impeach-able” than a Democrat, but with the spineless sort of congresses we’ve been cursed with lately, I’m not sure that will ever happen again…

    Ragspierre in reply to mumzieistired. | December 23, 2015 at 10:07 pm

    How? You elect a man like Ted Cruz, whose primary goal is to restore the Constitution.

      Matt_SE in reply to Ragspierre. | December 24, 2015 at 12:38 am

      While that’s a good start, you cannot rely on the goodness of the president or his self-restraint. Until Congressional Democrats can demonstrate independence and honesty, the president must be a Republican.
      Only a Republican president will be held to account by the media and Democrats in Congress.

    Pass legislation that requires that any executive agency regulation must also pass through Congress before it is considered law?

    That’s unworkable. The whole point of allowing agencies to write regulations is that Congress is incapable of and unsuited to determining the details by which its will should be implemented. If Congress has to pass all regulation then you may as well not have regulators in the first place. And if Congress has to pass all regulations it’s impossible that they will receive the proper scrutiny.

    No, the solution is to legislate that since agencies act for Congress, within six months of any regulation being promulgated, either house may veto it by resolution.

    Pass legislation that requires that any executive order that affects anyone outside the executive branch must also pass through Congress before it is considered law?

    Executive orders aren’t law.

      TX-rifraph in reply to Milhouse. | December 24, 2015 at 7:44 am

      “…the solution is to legislate that since agencies act for Congress, within six months of any regulation being promulgated, either house may veto it by resolution.”

      Good suggestion. Congress could also change the law the agency abused or cut the agencies budget if it abuses its regulatory authority. The EPA could have its wings clipped at the very least. Currently, the EPA is rewarded with more and bigger salaries if they can expand their reach. Congress and the courts have rolled over to the executive.

      A cardinal rule of management is that if you do not like the results you are getting, look at the reward system.

        Milhouse in reply to TX-rifraph. | December 24, 2015 at 4:27 pm

        Congress could also change the law the agency abused or cut the agencies budget if it abuses its regulatory authority.

        Yes, but that takes both houses and the president. The point of my proposal is that it only takes one house to veto a regulation. If you have both houses and the president, then it’s time for a major overhaul.

      Observer in reply to Milhouse. | December 24, 2015 at 7:57 am

      A better solution is to get rid of many of these executive agencies, which have no constitutional basis for existing in the first place.

      If congress eliminated agencies like HUD, DOE (Education), DOE (Energy), HHS, DOC, EPA, etc., and instead focused its efforts on its real constitutional responsibilities (like national defense, secure borders, etc.), it would have no need to devise new schemes for better oversight of the executive branch.

      Housing, urban development, education, energy, health and human services, commerce, air and water pollution, etc., are state concerns, not federal concerns. The federal government never had any business enacting giant federal agencies to micromanage the states in these areas.

      The solution to the out-of-control behemoth that is our current federal government is not better or different management of the behemoth. The solution is “fundamental transformation” of the behemoth into the government of limited powers that our Founders envisioned.

        Milhouse in reply to Observer. | December 24, 2015 at 4:36 pm

        A better solution is to get rid of many of these executive agencies, which have no constitutional basis for existing in the first place.

        What do you mean by “no constitutional basis”? Their basis is statutory. Are you seriously suggesting that Congress lacks the power to establish executive agencies and give them regulatory power?! How else could any government possibly operate? No, agencies are necessary, but they need to be closely supervised, and corrected when they stray from Congress’s intent.

          Observer in reply to Milhouse. | December 24, 2015 at 6:18 pm

          I am well aware that the agencies were established by statutes. That doesn’t mean the enabling acts were constitutional.

          And yes, I AM saying that congress lacks the constitutional authority to establish executive agencies and give them regulatory power over anything and everything they please.

          Are you unaware of the 10th Amendment?

          “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

          Perhaps James Madison can explain it to you:

          “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” – James Madison, Federalist 45

          Notice that Madison did NOT say that the powers of the Federal government are numerous and indefinite; no, that has been left to the congresses to say, especially those of the 20th and 21st centuries (and the various Supreme Courts which have rubber stamped their foolishness).

          Or maybe Thomas Jefferson can convince you:

          “I consider the foundation of the Constitution as laid on this ground that ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.’ To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, not longer susceptible of any definition.”

          Tom pretty well sums up where we are with our federal government today — thanks to ignorant and irresponsible congressmen, presidents, and Supreme Court justices (not to mention voters like you, apparently).

          Milhouse in reply to Milhouse. | December 24, 2015 at 10:10 pm

          Oh dear. Your ignorant rant is completely irrelevant. Of course Congress’s powers are not infinite. Congress is limited to its enumerated powers, and so are the agencies it created. Congress has the power to make all laws it thinks necessary and proper to carry out the dozen-and-a-half purposes the constitution lays out, and it has the power to create agencies to implement its laws and write the detailed regulations necessary for that purpose. So long as it falls under one of the categories listed, it’s constitutional.

    TX-rifraph in reply to mumzieistired. | December 24, 2015 at 7:51 am

    “…work with Congress…”

    What does “work with” mean? McConnell says he is working with the President. I want to see a government that operates within the Constitution which does set limits on how the branches “work with” each other.

“But Lawless makes clear that the next president cannot continue President Obama’s erosion of the rule of law.”

What’s to stop him? If Congress had the will, they would have done so already. And the Supreme Court has no teeth. So what or who does that leave?

    TX-rifraph in reply to irv. | December 24, 2015 at 7:38 am

    “What’s to stop him?”

    Elections. The voters elect corrupt and stupid people from school boards to POTUS. The voters want free stuff and don’t seem to care that our kids get to pay our bill and theirs. The voters have dumbed down the public education system. McConnell was reelected. Harry Reid was reelected. Obama was reelected. People stayed home in 2012 and did not vote.

    Yes, the MSM has been totally corrupted and that is the biggest hurdle I think. But, Obama and Hillary still have supporters? I apprehend that but I cannot understand it. We the voters are not receiving what we want but we are receiving what we voted for. Elections count.

    I do think this will all get corrected. I hope it is peacefully. End of rant.

“…when Congress defunded President Obama’s czars, he attached a signing statement deeming the legislation unconstitutional.”

This alone should have seen him impeached. A president who considers legislation unconstitutional, yet still signs it into execution, violates his oath of office and admits as much in his own hand.

    Milhouse in reply to DaveGinOly. | December 24, 2015 at 12:44 am

    This is not true at all. You seem never to have heard of severability. If part of an act is unconstitutional, and the rest can stand without it, then the unconstitutional part can simply be severed from the rest, and the bulk of the act remains valid. Therefore if, as president, you are presented with such a bill, there is no reason to veto the whole thing just because of the unconstitutional part; the proper thing to do is to sign it while noting that you regard that part as unconstitutional, and therefore will not enforce or implement it. You sever that part, just as a court would do. And you have the right to do so because each branch of government is entitled to its own view of the constitution.

      Vascaino in reply to Milhouse. | December 24, 2015 at 12:54 pm

      Oh right,
      ” And you have the right to do so because each branch of government is entitled to its own view of the constitution. ”

      No wonder there are so many scuffles about what is lawful, and what appears to be the descent into a banana republic.

innocent bystander | December 24, 2015 at 9:30 am

“But Lawless makes clear that the next president cannot continue President Obama’s erosion of the rule of law. Republican or Democrat, whoever holds the Oval Office in 2017 should work with Congress to pursue his or her agenda, whether that be expanding, amending or revoking Obama’s legacy.”

That’s just silly.

The president acted because he is the one that people hold responsible for the actions and inactions of government. And that is because Congress does not do its job, would allow the government to come to a halt in order to undermine the president, and has de-legitimated itself completely. The president is elected by all the people. Congress is elected by special interests with the most money. Who are you going to trust?

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