The president isn't a king

Monday, July 21, 2014

President Barack Obama reacted to the unanimous Supreme Court decision that he had acted unconstitutionally in making recess appointments by brazenly promising more of the same.

Refusing to apologize for "trying to do something" when Republicans in Congress refuse to act, he declared an intention to continue to push his authority to the constitutional limits, as defined by him. And if Republicans don't like it, they could sue him (which House Speaker John Boehner is apparently doing).

This is all quite remarkable for a man whose press secretary recently referred to as "the constitutional lawyer in the White House." Then again, it is also all of a piece for progressivism as an ideological movement, which, dating back to Woodrow Wilson, has maintained that the central deficiency of the American system was its insufficient centralization of power. For many progressives, the less left to the people to decide through their elected representatives in legislatures (especially those currently vexing Obama), the better.

At the heart of Obama's complaint is thus frustration with the system of separation of powers bequeathed to us by the framers of the United States Constitution.

Precisely because their greatest concern was to avoid tyranny flowing from the kind of centralized authority progressives crave, the framers established those famous "checks and balances" that would encourage the three branches of the federal government to jealously defend their turf from encroachments by the others.

What is today called "gridlock" is the rule rather than the exception in the American experience because our constitutional framework, unlike that of the British "Westminster" model so beloved by early progressives like Wilson, is designed more to block than to facilitate action. The assumption from the beginning was that less would "get done" but what did would be the product of negotiation and compromise and thereby command broad public support. The preservation of liberty was thought to require both limited government and the diffusion of political authority at both the federal level and in the relationship between federal and state.

Since Harry Truman succeeded Franklin Roosevelt as president in 1944, the party of the president has had control of both chambers of Congress in only 28 of 70 years. Pundits may decry "divided" government, especially when their man is in the White House and the other side controls the legislature, but Americans seem to like it when it comes time to vote.

This means that Obama either misunderstands the logic behind the American constitutional order or, more likely, fully comprehends but rejects and seeks to undermine it.

In short, Obama can't get Congress to do what he wants because he has no constitutional power to make it do so, and because the part controlled since 2011 by Republicans disagrees with what Obama wants to do. They have an agenda and political values different from his and it would make little political or ideological sense for them to embrace liberal initiatives they were sent to Washington by their constituents to oppose.

But, again, there is nothing necessarily wrong with any of this. As in the framers' original vision, faction checks faction and power checks power so that freedom should prevail. Obama has an approval rating at historically low levels for a president at this point in his second term, and many Democrats running for re-election are running as far away from him as possible. Within this context, it will prove interesting to see how many times Mark Pryor mentions Obama in his campaign commercials or asks him to visit Arkansas to lend him a helping hand.

The broader point is that the system is working because it is blocking action by an unpopular president who has an agenda and values that much of the public doesn't share. For Obama to impose that agenda and those values on the republic under such circumstances through edicts and decrees (his "pen and phone") would make a mockery of the concept of liberal democracy.

Obama's real problem, then, isn't Republicans. It is the rule of law as established by the U.S. Constitution, and the manner in which it prevents humble public servants from becoming dictators.

Those who disagree with such assessments might also want to think more thoroughly about the long-term consequences of presidents arrogating unto themselves powers of dubious constitutionality. Democrats won't always control the presidency; indeed, history suggests that they will lose it in November 2016. At which time their rediscovery of the importance of the rule of law as a means of constraining power might ring hollow after having so enthusiastically supported Obama's flouting of it.

The problem with presidents exceeding their constitutional authority in order to get things done (Obama's version of making the trains run on time) is that it derives from an essentially authoritarian, even fascistic, understanding of politics that contradicts all of the elements of the liberal American order. And it is also a game that, once begun, presidents of both parties can play. John Adams' government of laws gradually becomes just another banana republic of men.

As liberal legal theorist Jonathan Turley nicely put it, "An uber-president is only liberating when he is your uber-president."

------------v------------

Freelance columnist Bradley R. Gitz, who lives and teaches in Batesville, received his Ph.D. in political science from the University of Illinois.

Editorial on 07/21/2014