Unconstitutional at Any Speed: Assessing the Legacy of Obama

The burgeoning literature on the Obama administration, one of the most lawless in U.S. history, includes Michelle Malkin’s Culture of Corruption (2009), Tom Fitton’s The Corruption Chronicles (2012), Gene Healy’s False Idol (2012), John Fund and Hans von Spakovsky’s Obama’s Enforcer: Eric Holder’s Justice Department (2014), Andrew McCarthy’s Faithless Execution (2014), and the many legal critiques of Obamacare. None, however, focuses on the damage the 44th President has done to the U.S. Constitution like George Mason University law school professor David E. Bernstein’s excellent new book, Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.

Bernstein, known as a libertarian-leaning expert on constitutional law, is a meticulous scholar and the author of the trailblazing (and highly-praised) Rehabilitating Lochner (2011), a reassessment of the Supreme Court’s much-reviled decision upholding the liberty of contract in Lochner v. New York (1905). Here he has undertaken a large but important task, and we should be grateful that he has performed it so thoroughly. Many of the book’s examples of administration misdeeds have been reported elsewhere, but having them in a single volume (with extensive accompanying footnotes) creates a shocking indictment of the Obama presidency.

Bernstein is particularly concerned about Obama’s extravagant exercise of unilateral executive power, defiantly circumventing Congress and his own campaign promises. Unfortunately, this disregard for the Constitution only accelerated in his second term, as this book shows. But it is not a partisan screed. Readers seeking denunciations of specific policy initiatives, criticism of Obama’s competence, philosophical broadsides against the President’s judicial appointments, complaints about the record deficits and soaring national debt amassed on his watch, or simply an exploration of Obama’s many scandals will have to look elsewhere. For example, neither the ATF’s “Operation Fast and Furious” disaster and cover-up nor the Benghazi fiasco and cover-up qualify for Bernstein as “lawless.” He has strict standards for what deserves censure. Moreover, he does not restrict his criticism to the current administration; when relevant, he places Obama’s actions in historical context.

The author acknowledges at the outset that the Framers’ conception of a separation of powers balanced among the three distinct, independent, and coequal branches has been eroding for decades, with the executive steadily gaining power at the expense of Congress. George W. Bush was “especially aggressive” in claiming unilateral executive authority, he says. Still, in the absence of any major domestic or foreign crises, Barack Obama has pushed presidential prerogative to new levels, “across an unusually wide range of policy areas.” When he began researching the book, this President’s actions seemed to be in line with longstanding trends. But in delving into the record of the last seven years, he “became convinced that the administration’s lawlessness has well exceeded that of its recent predecessors, certainly in degree, but also in kind.”

Perhaps the most remarkable way that the President has shown his contempt for the Constitution’s checks and balances is that so often his sole justification for ruling by executive fiat has been his desire to circumvent lawmakers on the other side of the aisle. Hyper-partisan politics, the general media bias in his favor, and an embedded Leftist mindset among the Beltway elites have assisted Obama’s arrogant sacrifice of constitutional constraints in pursuit of “desirable” policy objectives regardless of the views, and the constitutional role, of those who disagree with him.

In the realm of domestic affairs, the book catalogs the Obama Department of Justice’s malfeasance. The DoJ advocated numerous “outlandish legal theories” that were unanimously rejected by the Supreme Court. The Department’s chief, Eric Holder, became the first Attorney General to be held in contempt of Congress. Its top leadership ignored the legal advice of the Office of Legal Counsel on voting representation in Congress for the District of Columbia and then selected a rubber stamp, Virginia Seitz, to head the OLC. Seitz went on to opine in favor of “one of Obama’s most egregiously unconstitutional actions,” making “recess appointments” when the Senate was not in recess. (This was one of the unanimous Supreme Court rebukes.)

The DoJ’s Civil Rights Division was allowed to decline to prosecute members of the New Black Panther Party for voter intimidation. The Department has been packed with attorneys tied to Left-wing activist groups. It has encouraged environmental groups to sue the federal government, so that its Environmental and Natural Resources Division has been able to enter into “sweetheart” settlements that require regulation more stringent than that allowed by existing law. Lastly, the Department refused to defend the Defense of Marriage Act from constitutional challenge. Bernstein ruefully concludes that the President and Attorney General “were more interested in playing politics and pursuing a progressive ideological agenda than in upholding the rule of law.”

In foreign affairs, Bernstein deems Obama’s record a “huge disappointment,” not so much for what Obama did, but because he failed to reverse the recent trend of presidential usurpation in this area, despite campaign promises to the contrary. The Obama expansion of drone strikes, military intervention in Libya, and, with the blessing of unexpectedly malleable State Department legal adviser Harold Koh, disregard of the War Powers Resolution were, although controversial (and generally unpopular among legal scholars), consistent with longstanding precedents dating to the Truman administration. Bernstein’s close analysis of Koh’s possible motives for his “about-face on the scope of executive power” borders on inside baseball. It simply strikes this reviewer that the Yale law professor abandoned his pre-State Department views because, like many liberal academics, he is an unprincipled chameleon seeking power and influence.

One of Bernstein’s strongest (and most original) chapters is his defense of private property and freedom of contract, sacred institutions to libertarians and classical liberals. He says without qualification that the Obama administration has compiled “the worst record on respecting property rights of any presidential administration,” and he has the facts to back it up.

The Obama assault on property rights can best be seen in the fact that in three property rights cases that the administration argued before the Supreme Court, the administration lost each one by a vote of 9 to 0. The matters at issue were: the EPA’s attempt to punish the owners of a dry, non-waterfront, residential lot who had done some routine grading, unless the owners restored the lot, on the grounds that it was a “wetlands”; the Army Corps of Engineers’ refusal to compensate property owners for damage to woodlands downstream of a Corps dam caused by the Corps’ periodic (but temporary) flooding on the grounds that only permanent flooding could constitute a “taking”; and the Department of Agriculture’s pursuit of sanctions against raisin growers who refused to surrender a portion of their crop to a government-sponsored raisin cartel.

On fiscal and economic policy, Bernstein implicates the preceding administration, which unilaterally doled out $17 billion in Troubled Asset Relief Program (TARP) funds—intended for “financial institutions”—to the auto industry, but lambastes Obama for tripling the TARP payout to GM and assigning government bureaucrats to micromanage GM and Chrysler. Especially disturbing was Obama’s edict that GM and Chrysler reorganize in bankruptcy, under special rules that spared overly generous union pension plans but decimated shareholders and even secured creditors, leaving the federal government with a big stake in the resulting “new GM” and “new Chrysler.” According to Bernstein it was an “illegal reorganization” facilitated by White House threats and intimidation. Ultimately, taxpayers lost $23 billion on the GM bailout, due entirely to exempting the car company’s unions “from having to accept standard pre-bankruptcy concessions.”

Obama’s thumb on the scale in favor of unions extended to the National Labor Relations Board’s extraordinary complaint against Boeing for opening a new production facility in employer-friendly South Carolina instead of union-preferred Washington state. This illegal bullying enabled the unions to extract concessions from Boeing to raise wages and expand production in Washington. Obama’s appointees similarly bullied the health insurance industry into accepting Obamacare regulations not authorized by the (poorly drafted) underlying statute, and the oil company BP into creating a $20 billion compensation fund for the 2010 Gulf of Mexico spill.

The use of “czars” to head federal agencies, in circumvention of the Senate confirmation called for in the Constitution, receives much-deserved attention in Lawless. Again, the practices of earlier Chief Executives are described as setting the stage for President Obama. As with recess appointments, previous administrations (including that of George W. Bush) have gamed the distinction between “principal officers” and advisors, and have created “czars” who do not need Senate confirmation.

Candidate Obama rode a popular backlash against Bush’s overuse of czars into office—and promptly emulated Bush. Obama created, reports Bernstein, 20 czar positions in his first four years in the White House, which was “over twice as many as Bush had created in two terms.” This further concentrates power in the executive branch. And incidentally, Obama’s reaction to Congress’ belated funding cutoff for illegal czar positions was to issue a “signing statement” of precisely the sort he had vowed as a candidate to eschew, another demonstration, writes Bernstein, of “utter contempt for Congress as a coequal branch of government.”

The chapter on Obamacare describes the Affordable Care Act as “a constitutional and rule-of-law disaster” for many reasons, including that it originated in the Senate, despite a constitutional requirement that all revenue-raising bills originate in the House. While Bernstein’s characterization is apt, I will not spend much time summarizing his arguments, which (unfortunately) have not yet proven successful despite two trips to the U.S. Supreme Court.

If Obamacare is ultimately upheld, the greatest blame will be borne, not by Obama, but by the Congress that enacted it and the Supreme Court for failing properly to apply the Commerce Clause to invalidate it. Particular obloquy—now and forever—is owed to Chief Justice John Roberts for singlehandedly saving Obamacare—twice. Bernstein justifiably scores the Obama administration for unilaterally “fixing” defects in the Obamacare statute, delaying its implementation, and “waiving” certain provisions via executive edict (some contained in blog posts!). This is surely the most depressing chapter of the book.

As a libertarian, Bernstein is acutely concerned about the First Amendment. By his lights, Obama’s worst demagoguery has been on the subject of free speech. Citizens United (2010), after all, upheld an organization’s right to show a movie criticizing a presidential candidate before an election. What’s more central to the First Amendment than that?

In addition to explicating the oft-ignored free speech implications of campaign finance “reforms” and bemoaning (at some length) Obama’s rhetorical war against the Koch brothers, Bernstein skewers the Internal Revenue Service for its outrageous campaign against conservative non-profit groups. IRS Director of Exempt Organizations Lois Lerner led a witch hunt against Tea Party-type groups, requesting “voluminous and often inappropriate information” from them and effectively preventing many conservative groups from obtaining 501(c)(4) status. Lerner sought the names of donors, the resumes of individuals involved, the titles of books applicants had read, relationships with other groups, personal information on interns, and similarly intrusive information, demanding responses up to 20,000 pages in length, under dire threats of perjury charges. Bernstein reports:

Many of those who tried to organize 501(c)(4)s eventually gave up, some out of frustration, others because they did not have the resources to comply with the never-ending paperwork requests.

IRS officials “repeatedly lied to Congress” before the IRS publically admitted in May 2013 that it had targeted conservative groups. Bernstein correctly calls this episode “one of the great political scandals in recent American history,” yet to date no one has been prosecuted. Incredibly, Lerner was allowed to retire instead of being fired. An abridgment of the First Amendment this clear-cut, followed by no accountability, is disgraceful. (Arguably even worse is a Senate action regarding the First Amendment, mentioned by Bernstein: the chamber’s passage last year of a proposed constitutional amendment to overturn Citizens United.)

The chapter entitled “Antidiscrimination Law Run Amok” is a tour de force. It begins with the Equal Employment Opportunity Commission (EEOC) interfering with religious employers by advocating an unduly narrow application of the “ministerial exception,” yet another of the instances of  unanimous Supreme Court rejection of Obama administration actions (Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 2012).

Also detailed is the overreach by the Department of Education’s Office of Civil Rights (OCR) in transforming Title IX—intended to prohibit sex discrimination at federally funded universities—to require schools to adopt one-sided disciplinary codes, administered by academic personnel ill-equipped to handle an adjudicatory proceeding, with the effect of  railroading students accused of sexual misconduct. OCR dictates procedural rules that lower the burden of proof in these quasi-criminal hearings to “preponderance of the evidence,” which discourages cross-examination of the accuser. In a Star Chamber-like twist, OCR has even suggested that the presumption of innocence be eliminated. To top it off, this transformation is being effected through an OCR guidance—not even a formal regulation. Bernstein rightly calls it “almost certainly illegal and unconstitutional.”

Nor has OCR stopped there. It has also “sought to impose a draconian nationwide speech code at American universities.” In May 2013, the OCR sent a joint letter with the Department of Justice to the University of Montana memorializing the settlement of a sexual harassment case brought under Title IX. Incredibly, the letter stated that it was intended to “serve as a blueprint for colleges and universities throughout the country,” even as it ignored “Supreme Court precedent, the First Amendment, and OCR’s own previous guidance.” Any sexually themed remark that subjectively offended any listener would be actionable. OCR eventually backpedaled on that one, but the damage was done. The specter of losing federal funds and/or becoming embroiled in unfounded claims has led to unconstitutional speech codes at many campuses.

Other brazen overreaching by Obama appointees includes federal guidelines “pressuring public school districts to adopt racial quotas when disciplining children” and the EEOC’s absurd campaign (so far, thankfully, rejected by the courts) “to try to force employers to ignore job applicants’ criminal records” under a bogus “disparate impact” rationale.

There are a couple of areas where Bernstein pulls his punches. One is immigration. It’s a bit odd, since the foreword to Lawless is by Senator Ted Cruz (R-TX), who has criticized Obama’s unilateral grant of amnesty to millions of illegal aliens by executive order when Congress failed to pass the so-called “DREAM Act.” Cruz has said the President went well beyond the exercise of conventional prosecutorial discretion, flouting federal law and even “counterfeiting immigration documents.”

Bernstein relegates the grant of amnesty to the final pages of his book, conceding that Obama has “acted improperly” and that his executive order flew in the face of his repeated prior assurances that such action would contravene the Constitution. Since the author does acknowledge that “no president had ever used the discretion provided by the immigration laws and inherent to his office simply to evade congressional opposition to his policies, nor to extend de facto legal status to so many people,” the issue, in my judgment, deserves more attention than he gives it. It is arguably the signature act of lawlessness by a President whose contempt for the Constitution is as facile as it is breathtaking.

In the same vein, the Tenth Amendment goes virtually unmentioned in Lawless. The Obama administration’s appalling record of encroachment upon the autonomy of the 50 states—such as the EPA’s proposal to limit carbon emissions for electrical generation plants, the wildly overreaching Endangered Species Act and Clean Water Act enforcement, the imposition of cross-state air pollution rules on the state of Texas, and the DoJ’s bordering-on-frivolous Voting Rights Act litigation to challenge voter ID statutes—should have been discussed. These infringements on state sovereignty have provoked significant litigation against the administration by numerous state attorneys general.

As to what we the people can do to counteract a lawless Chief Executive, Bernstein, first noting that impeachment is “virtually toothless,” makes some well-meaning suggestions. He proposes greater congressional oversight, bipartisan legislation to restrain the next President, and liberalized “standing” to permit “a wider range” of judicial challenges to “the abuse of presidential authority.” He enjoins future attorneys general and Presidents to respect the legal advice of the OLC, and expresses the hope that  future occupants of the White House might “voluntarily limit their own exercise of power even when pressing political considerations dictate otherwise.”

Unfortunately, it amounts to wishful thinking. Ultimately the American public must do a better job of electing Presidents committed to the rule of law, Congress must be more vigilant in guarding its prerogatives and enacting only constitutional laws, and the Supreme Court must trim the sails of the executive branch by revisiting the Chevron doctrine and limiting the delegation of legislative power to administrative agencies.

If the solutions are not here, surely few books have outlined the problem as well as Lawless, which deserves the attention of all serious students of constitutional government.