The Descent Into Quasi-Law

“Stroke of a pen . . . law of the land. Kind of cool.” That insouciant comment, made by Paul Begala when he worked in the Clinton White House, raised controversy when Begala said it back in 1998, but it hardly would today.

After all, just in the past few weeks we have discovered that President Obama plans to sign, on his own authority, an international “climate change” treaty. He calls it an executive agreement and so claims he needs no congressional approval, even though his administrators will use the treaty to impose new policies and rules binding American individuals, governments, and businesses to change their behavior on pain of federal sanction.

We also have discovered that the Obama administration has been funneling money it wrangled from legal settlements with banks—intended to help those victimized in the last mortgage bubble—to partisan organizations supporting its own political agenda.

In addition, Obama has “proclaimed” the world’s largest ocean reserve off the coast of Hawaii and created a massive federal “monument” banning economic activity from a large swath of Maine. The mainstream press has lauded these last actions as pro-environment. But loggers, fishermen, and consumers will pay the price for policies implemented without the constitutionally required debate in Congress regarding their costs and benefits.

What all these actions have in common is their contempt for constitutional forms and procedures. I use the term “contempt” to indicate, not open hostility, but rather an utter lack of concern. And this lack of concern increasingly crosses institutional and partisan lines.

Some of the President’s recent actions might be dismissed as mere “perks of the office.” Creating monuments, changing the names of mountain peaks (Mount McKinley is now Mount Denali) and such have become pseudo-prerogative actions in the United States; few among our elites care to question them. But, as with all prerogatives, those who hold these powers will seek to expand them. Under Obama the “flexibility” of the President has come to swallow up the rule of law.

Take, for example, this President’s attempts to contravene established law so as to prevent deportation of persons in this country illegally. In a series of 12 executive orders he did precisely this, exempting from deportation anyone who met a set of criteria specifically rejected by Congress. The orders eventually were stuck down by a federal appeals court—a decision upheld on account of a tie at the U.S. Supreme Court. What was truly astonishing about this naked power grab, intended to allow up to five million people in this country illegally to stay here in defiance of the clear language of properly promulgated law, was that it almost succeeded.

Even more than through direct decree, Obama has seized massive power for himself through cynical misuse of his executive, administrative power. He has directed his administrators to issue orders and regulations contradicting and/or going well beyond the intention of the laws they are sworn to uphold. Judges help as well. Chief Justice John Roberts saved Obamacare by pretending that its provision imposing a penalty on anyone daring to not purchase the dictated health insurance was merely a “tax.”

Other instances of overreach abound and multiply. Sometimes Obama loses, as with his attempt to force the Little Sisters of the Poor—an order of Catholic nuns caring for the elderly and dying—to cooperate in the provision of contraceptives and abortion-inducing drugs through their health insurer. More often he seems to be winning, as with his Education Department’s intentional misreading of Title IX of the Civil Rights Act.

The Department has taken it upon itself to vastly widen the definition of “sexual harassment” and to alter the plain meaning of Title IX’s ban on discrimination on the basis of sex to demand students’ access to bathrooms belonging to the opposite sex. Across the nation universities in particular are reversing traditional burdens of proof and truncating due process rights for those accused of sexual misconduct out of fear of Education Department investigations and reprisals. All this in response to bald claims of power without any reasonable basis in the legislation under which the Department is claiming the authority to regulate.[1]

Much of the Education Department’s power in this area does not stem from the law, or even its own regulations. Most of the changes in educational policy—and the rights of the accused on college campuses—result from directions embedded only in “Dear Colleague” letters sent by mid-level bureaucrats to universities. Even more changes owe their existence to consent decrees entered into by universities with the Department out of fear of the cost and bad publicity of a federal investigation.[2]

None of this is to say that the Obama administration is the first to stretch the powers of the presidency beyond constitutional bounds. All of his abuses have precedents in previous administrations. Moreover, the movement toward presidential power has been aided and abetted by a Congress intent on passing broad legislation “solving” problems like workplace safety through massive delegations of power, then accepting a distinctly secondary role as ombudsmen and overseers of administrative quality-control. Courts, too, have expanded executive power through their own quasi-legislative actions, demanding that new and expanded rights be made real through discretionary actions by administrative agencies.

We have seen in recent years the solidification of a regime different in character from that embodied in the language of the Constitution. Partly on account of a determination to pursue a radical agenda and partly on account of the breakdown of opposition from other branches of government and the people, we have seen a fateful shift in the operating rules of our political order. These actions, and cavalier responses to them, evince a lack of respect for constitutional forms and procedures that has become so pervasive as to undermine the rule of law. Indeed, it is not too much to say that the United States no longer is a regime of law, but one of mere quasi-law.

By quasi-law I mean directives with the force of law that lack crucial characteristics of genuine law. Emanating from all three branches of government, quasi-laws create rights and duties like laws but lack essential legal attributes such as promulgation through prescribed means and provision of predictable rules rather than mere delegation of discretionary power. Citizens today may find themselves charged with violating “rules” emanating from any branch of government (including, of course the fourth, administrative branch) without understanding their content or origins, even as rulers find it increasingly difficult to enforce effective policies in the face of unpredictable conflicts with members of other branches.

Thus, the persistent breaking of constitutional rules has produced confusion, tension, and animosity among those making and following law. It also increasingly denies the people that most basic of goods provided by legitimate governments: predictable rules allowing them to go about their lives without fear of arbitrary, surprising punishment for their actions.

The roots of our descent into the rule of quasi-law are relatively deep. From Woodrow Wilson and the Progressives to Franklin Roosevelt’s New Deal, powerful political actors have attacked the “deadlock of democracy,” painting the Constitution as an impediment to expression of the people’s will. This determination to turn our Constitution into a tool of transformation, rather than a charter of limited government, crucially undermined the rule of law. The ideological choice of results over process and form that literally transformed our constitutional culture from one devoted to maintenance of a free people governing itself in its various local associations into a conflicted set of interested parties and ideological factions fighting to control the levers of federal power for their own ends.

The crucial change that has taken place has been the atrophy of Americans’ constitutional morality. This term, most fully developed by the late George Carey, refers to the felt duty of the people, and especially those in positions of political authority, to respect constraints on their power included in the written and unwritten constitutions. Having delegitimized the written Constitution’s emphasis on limited, checked, and balanced powers, and having sold the people on a conception of the national government as one properly responsible for the well-being of every individual in the nation, Progressives of various sorts have destroyed America’s traditional constitutional morality. In its place we now have a confused set of motivations and convictions in important ways opposed to the written Constitution.

Our Constitution was written for a people seeking to live decent lives within their own, largely self-governing communities. It cannot function if the unwritten constitution, as we can call it, of institutions, beliefs, and practices no longer supports a limited central government of separated powers. It would be easy to simply despair of our constitutional order and recommend a new one, seeking to cabin power through extensive, detailed statutes or administrative procedures. This has been the direction of reform for some decades. It has not born fruit for the simple reason that contempt for constitutional formalities necessarily involves contempt for legal formalities.

Only the hard work of restoring our unwritten constitution will make it possible to enforce and rebuild our constitutional order. This is not the work of a few detailed reforms, but of a decades-long struggle to reinvigorate the determination to use already existing constitutional procedures to limit power. The power of impeachment and removal, the power of the veto, and, above all, the determination to cease supporting actions, by whatever branch of government, that fail to abide by the requirements of constitutional and legal form; all these must be grasped again by citizens and public figures determined to restore the rule of law and our constitutional order.

[1] The new regulations have suffered only limited judicial setbacks along the way. For a detailed critique, see “Law Professors’ Open Letter Regarding Campus Free Speech and Sexual Assault.” Available at: https://www.lankford.senate.gov/imo/media/doc/Law-Professor-Open-Letter-May-16-2016.pdf

[2] Of course, the Department is aided by campus administrators only too happy to comply with any directive increasing their own power and supporting their own ideological programs. A useful summary of these actions is provided in the document from Senator Lankford’s office, cited in previous note.