By Andrew C. McCarthy
Barack Obama has never been clear on the distinction between sovereign and servant, between the American people and those, including himself, elected to do the people’s business. We saw that yet again this week with the president’s unilateral rewrite of the Bataan Death March known as the Affordable Care Act — Obamacare. For this president, laws are not binding expressions of the popular will, but trifling recommendations to be ignored when expedient.
The collapse of law — not just Obamacare but law in general — is the Obama administration’s most egregious scandal. With the IRS here, Benghazi there, and Eric Holder’s institutionalized malevolence crowding the middle, it gets little direct attention. Perhaps it is so ubiquitous, so quotidian, that we’ve become inured to it.
Above all else, though, the office of the president was created to take care that the laws be faithfully executed. For this president, to the contrary, law is non-existent — and not merely law in the traditional sense of our aspiration to be “a nation of laws not men.” Obama has contorted the law into a weapon against our constitutional order of divided powers and equal protection for every American.
As with most things Obama, this Olympian outrage springs from a kernel of propriety. We want our laws enforced, particularly when they reflect basic obligations of government in a free, civil society. Nevertheless, we know that the resources of government are finite, that laws are numerous and elastic, and that a federalist system implies a significant enforcement role for states. Thus, our legal system is premised on executive discretion. Not every law can or should be enforced to its fullest extent — nobody would want to live in that sort of society. To execute the laws faithfully is to remain mindful of the federal government’s essential but finite role in our framework and to concentrate its limited resources on enforcement of the most vital laws.
As a practical matter, this necessitates selectivity — some laws will go unenforced, some wrongs un-addressed. With a president who acts in good faith, this is not a problem. For example, simple possession of prohibited narcotics is a federal crime. But it is also a state crime. Given the need to prioritize, it is sensible for the feds to focus their efforts on what the federal government was designed for — international and interstate challenges that the states are not well equipped to address. So the Justice Department targets major drug-importation and distribution networks, leaving less serious drug infractions to the local district attorneys. Notice: This does not mean the executive branch is effectively decriminalizing less serious drug offenses in contravention of Congress’s statutes. It means the public’s federal buck goes to where it gets the best bang.
The separation-of-powers principle also has implications for executive discretion. To promote liberty, the Framers constructed a central government of divided authorities in which each branch was given tools to check inevitable encroachments by the others. Congress has an irresistible propensity to enact laws that usurp the powers of the executive and the states, and that erode the rights of the people. But Congress can only write the laws. It must depend on the president to execute them.
A president who believes in good faith that a congressional act is constitutionally invalid may properly decline to enforce it — in fact, he would in good conscience be bound to decline — at least until the Supreme Court has ruled on its validity. Faithfully executing the laws has never mandated that a president enforce unconstitutional statutes.
But note that this is a matter of legal legitimacy, not policy preference. Faithful execution, abiding by the president’s oath of office, means enforcing even those laws a president disagrees with on policy grounds if the laws are plainly constitutional. The Constitution gives Congress a wide berth to enact unwise laws, to say nothing of perfectly sensible laws that are uncongenial to a hard-left ideologue. There is nothing wrong with a president’s working to change those laws; in the meantime, though, he breaks his solemn pledge by failing to enforce them.
Bona fide concerns over resource allocation and constitutionality are narrow exceptions to the general rule that obliges presidents to execute the laws. In Obama’s hands, however, executive discretion has become an affirmative license for lawbreakers. Worse, it has seamlessly devolved into an invitation — an inducement — to official malfeasance. Again, only the executive branch can enforce the law. When executive-branch officials know that illegal actions on their part will not be pursued, they are encouraged to commit them.
Thus Obama eschews enforcement of the immigration laws not because they are comparatively trivial or adequately covered by state police — indeed, his most notable enforcement efforts are directed not at illegal aliens but at states who dare attempt to see to the law’s faithful execution. Obama’s discretionary non-enforcement is not a good-faith husbanding of federal resources but a cynical enterprise in rewarding lawbreakers and cultivating them as a dependable political constituency. His Justice Department practices racial discrimination in the enforcement of the civil-rights laws, a grievous betrayal of the Constitution, in order to appease and empower his political base.
The faithful execution of laws is never partisan; under Obama, the execution of laws is intensely partisan. He purports to make “recess appointments” when Congress is not in recess. He skirts Congress’s constitutional war powers by pretending that attacking another country (Libya) is not making war. If his core supporters are damaged by the suffocating laws he champions — most prominently, Obamacare — he claims the power to “waive” their provisions selectively. Meanwhile, huge bureaucracies are encouraged, expressly or by nod-and-wink, to harass the president’s opponents and push forward his redistributionist, production-strangling, Islamist-empowering agenda. The executive order — formerly an intra-branch efficiency device designed to organize the exercise of the president’s constitutional powers and the enforcement of Congress’s laws — has effectively become legislation, the president substituting his edicts for our laws.
In a vibrant, pluralistic society, law, as an expression of the sovereign will, is unavoidably a product of compromise. In the contentious process, the competing sides bend; they settle on something that neither, given their druthers, would support; and they honorably agree to abide by the result. Under Obama, however, massive laws are enacted — such that no one can conceivably know what the law is. Then the president enforces the parts he approves of, contemptuously disregards the parts that enticed naysayers into compromising, and presumes to amend or repeal inconvenient provisions at his whim.
That is not the rule of law. It is how a dictatorship works.