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


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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