Of Constitutionalism, Consequentialism and Climate

The president, armed with inherent executive power topped with statutory authority, faced a dilemma: Danger beckoned. Congress alternated between theatrical hems and political haws.  The international position and perhaps security of the United States were at stake.  So he chose the path of boldness—the path down which greatness lies.

Reported in certain journals, that might have been President Bush at the height of the Global War on Terror.  But portrayed in other outlets, it was President Obama bypassing Congress, employing unilateral executive power to regulate greenhouse gases.  Politically, a great distance separates Bush and Obama.  Constitutionally, it is increasingly difficult to tell them apart—and one reason is the theory of the Presidency some conservatives propagated a decade ago and which is now being bent toward purposes that probably make them wish they had remembered the axiom never to endorse any power one would not entrust to one with whom one disagreed. 

Obama announced last week that he would utilize his authority under the Clean Air Act to regulate carbon emissions from power plants.  This is the resolution of his ultimatum to Congress in the State of the Union: you act or I will; they didn’t, so he did.  Constitutional traditionalists will recognize this—a President presuming to dictate the terms and timing of policymaking to the legislative branch, then imposing policy unilaterally when they do not comply—as different from the regime of separation of powers anticipated in The Federalist.  Recent consumers of the news, however, will recognize it as strongly akin to the theory of presidential power on which the Bush administration relied.

There is, of course, ample room to disagree about the appropriate course on climate change.  But it was neoconservatives who resurrected Woodrow Wilson’s “great man” theory of the Presidency, the heroic leader who speeds to the outer limits of his authority to arrive at his date with destiny on time.  They knew, or ought to have, that they were reviving a Progressive theory—the same one that impelled Congress to cede enormous swaths of vague authority to the executive branch, as in the Clean Air Act—and as such were playing with a live wire.  Now the neoconservative and Progressive strains of that theory have converged in a President simultaneously inclined to utilize the full force of an office elasticized by his predecessor and empowered by vague regulatory statute to do so.  Will an über-presidency result?

Neoconservatives had, in fairness, terrorism rather than domestic policy concerns in mind during the Bush years.  They doubtless would argue the office is more elastic in matters of national security and foreign policy than in domestic affairs.  But in an age in which every problem is a crisis and every crisis invokes the vocabulary of war—it was, after all, John McCain who cast climate change as a national security issue—it was utterly predictable that the Bush-era presidency would metastasize into the domestic realm.  And, indeed, on the conclusions Obama has reached about climate change—that it is real, that it is imminent and that a failure to act threatens our position diplomatically and our safety domestically—the line between at home and abroad may blur in this case as it did on terrorism.

One can disagree with Obama’s conclusions, to be sure, but that shifts the objection from grounds of procedure to policy.  The point is that those who turned their backs on the separation of powers when it impeded policy conclusions they desired in the 2000s are hardly in a strong position to invoke it when it would be useful to inhibit policies they oppose now—which brings us to the real problem, one increasingly infecting American political discourse: situational constitutionalism.

Few principles are more important to constitutionalism than the separation of powers.  It was intended to thwart tyranny, but also performs a moderating function by requiring at least two keys to launch a political missile.  The importance of this constitutional form lies in its availability for the truly hard cases, but like the adversarial system in a court of law, that means it must be preserved for the ordinary cases too.  It being difficult in the moment to tell which these are, the prudent bet is simply to adhere to the form, especially since the precedent that forms can be ignored for convenience’s sake is dangerous of itself.

Hence the difference between constitutionalism and consequentialism: The constitutionalist respects the procedure independent of the policy it produces; the consequentialist’s concern lies solely with the end result.  The quickest way to tell the difference is to ask whether a public figure has ever declined a policy opportunity he or she favored as unconstitutional or, conversely, acknowledged the constitutional legitimacy of a policy he or she strongly opposed.  Constitutionalism requires swallowing policy outcomes one would not prefer and foregoing others one would approve.  Its steady payoff in liberty and predictable, stable forms was once thought worth its modest price in temporary frustrations.  The price of consequentialism—the long-term erosion of constitutional forms and the slow asphyxiation of constitutional government—is far higher.

In any case, those who decried the imperialism of the Bush presidency when he staged end-runs around Congress only to applaud Obama for doing the same today occupy the same constitutional boat as those who accuse Obama of a power grab now but once encouraged Bush to grab all the power within his reach.  It is not equipped with life vests.