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Friday, September 7, 2012

Obama vs. the Constitution

The rule of law is on the ballot

There were warning signs about President Obama’s fealty to the Constitution even before he took the oath of office.

As a senator he had voted against the nomination of John Roberts to be chief justice of the Supreme Court, arguing that Roberts was deficient in the “empathy” required for the position. In a speech during his campaign for the Democratic presidential nomination, he said any justice he selected would have “to understand what it’s like to be poor or African American or gay or disabled or old.” In other words, he wanted a judicial thumb on the scales for liberalism: Notice that he didn’t mention any empathy for small-business owners or kids in failing schools.

During the general-election campaign, Obama answered an interviewer’s question about whether abortion would be a “litmus test” for his judicial appointees by saying that a person who did not believe in the right to privacy, “as well as the implications for gender equality,” would not have the right judicial philosophy. In other words, a refusal to reconsider judicial decisions that even many liberals admit are hard to square with the text, original understanding, history, or structure of the Constitution is a prerequisite for a judicial nomination from Obama. (He never said anything about empathy for unborn children, either.)

Since taking office, Obama has compiled a record consistent with these early hints. Again and again, liberal policy preferences have trumped fidelity to the Constitution.

Unilateral amnesty. The most recent example came in mid-August, when the Obama administration began implementing the DREAM Act even though Congress had never passed it. The president issued an order commanding immigration agencies not to deport some illegal immigrants who were brought to this country as children and to give them work-authorization permits.

Whether or not this policy is a good idea, it is an idea that Congress has so far declined to put in law. It cannot be justified as a mere prioritization of scarce executive-branch resources, any more than a president could end the enforcement of provisions of the tax code he dislikes on that pretext. Obama understood the point well enough in 2011, when asked whether he could use an executive order to overcome congressional resistance. “America is a nation of laws, which means I, as the president, am obligated to enforce the law,” he responded. “There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as president.” It was true when he said it. It still is.

Welfare waivers. This summer has yielded another case in which the president implemented a policy that Congress never enacted, by exploiting a supposed power that nobody had ever previously contended a president had. Ever since welfare reform was enacted in 1996, states have had to ensure that nearly half of their caseload was involved for at least 30 hours a week in work, on-the-job training, job search, or similar activities. In mid-July, the Department of Health and Human Services said that it could waive this requirement.

The welfare-reform law explicitly gave the secretary of HHS the authority to waive many sections of the law — but did not include the section of the law detailing the work requirements among those waivable. This feature of the law will come as a surprise to no one familiar with the political history that gave rise to the reform in the first place. Welfare reform was enacted by a Congress that deeply distrusted President Clinton: Its fight with him over the budget had already led to two government shutdowns, and it would go on to impeach him. Work requirements were (and are) popular. That Congress would never have given that president the authority to throw out the work requirements. Prior to July, nobody ever argued that it had.

Marriage. Obama’s public position on marriage has been notoriously mutable, but in all his moves he has never found a place of sincerity or logical consistency. As a result there is no way to explain his administration’s actions on the Defense of Marriage Act in a way that speaks well of its fidelity to the Constitution.

Initially the administration claimed it would defend the constitutionality of the law in court even as it favored its repeal. After its first legal filings in the law’s defense elicited outrage from liberal activists, however, it modified that defense by abandoning arguments that had previously succeeded in court. In 2011, Attorney General Eric Holder announced that he had concluded that the law was unconstitutional — indeed, that no reasonable defense of its constitutionality could be made — and that the administration would therefore stop defending it in court.

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