Patrick Borchers is a contributing writer on Leavenworth St.
It hadn’t occurred to me to attach the word “crisis” to the Constitution until Ben Sasse did so in one of his Youtube videos during the Republican Senate primary in 2014. The video went sort of viral after it was linked on the Drudge Report.
Sasse was referring then to one of Obama’s executive pronouncements delaying a date in the Affordable Care Act. (Obama did so 28 times, so it’s hard to keep them straight.)
At first I thought Sasse’s characterization was overblown, but the more I have thought about it the more I think he’s right. The odd thing about crises is that sometimes it’s harder to see them from the inside than it is looking at the long arc of history.
The United States, by my reckoning, goes through one about every 75 years and this one has arrived right on schedule. In each case the response has been the further consolidation of power in the federal government, and lately pulling it in even further into the White House.
Sometimes the strengthening of federal power has been for the better, but lately I think for the worse.
The first crisis brought us the original Constitution, which was drafted in 1787. It replaced the weak Articles of Confederation with a much more robust federal government.
Rolling forward roughly 75 years brings us to the Civil War. The southern states believed that they had a sovereign right to secede and imagined themselves to be fighting the second American Revolution, but with the North as the enemy rather than Britain.
Of course, the social issue of the time was slavery, though several border slave states did not secede. With the Union’s military victory secured in 1865, the Civil War Amendments (the 13th, 14th and 15th) were ratified. Most obviously they abolished slavery, but they gave Congress considerable new legislative authority.
Rolling forward another 75 years brings us to the Great Depression. FDR’s New Deal depended on a massive expansion in the interpretation of the Commerce Clause to provide federal power for national welfare and regulatory structures. When the Supreme Court proved recalcitrant, FDR proposed packing the Court by adding up to six new Justices (taking the Court to 15 Justices). Although the Court packing plan wasn’t adopted, the Court got the message and started voting to uphold most of the New Deal legislation.
If we roll forward roughly another 75 years, we come to the Great Recession and Obama’s election. Again the response has been a dramatic increase in the power of the federal government, and lately in the White House.
In the two-year window from 2009 to 2011 when the Democrats controlled both houses of Congress and the White House, two enormous pieces of legislation passed – Dodd-Frank and the ACA. Although the scope of the legislation in each case is breathtaking, what’s even more remarkable is the power delegated to regulatory agencies.
What’s equally stunning, however, is that President Obama has claimed both that Congressional action and inaction give him the authority to essentially legislate by Executive Decree. In the case of the ACA – as mentioned above – he 28 times unilaterally delayed implementation of various facets of the act.
In Representative Trey Gowdy’s epic speech on the House floor, he reminded the President that Congress doesn’t pass suggestions; it passes laws.
But even when Congress doesn’t pass anything, President Obama claims the right to act unilaterally. In announcing his Executive action on immigration, Obama said defiantly: “To those in Congress who question my authority to act . . . I have one response. Pass a bill.”
A moment’s consideration is all that is needed to see the patent danger in this line of reasoning. Congress has passed a lot of laws on immigration and there has thus far been no political consensus to pass any more. In the scheme of separated government that we have, the President is to “Take Care” to see that the laws that are on the books are faithfully executed.
But President Obama’s position is that he and the rest of the Executive Branch can decide to enforce the immigration laws it likes and ignore the others, at least until Congress passes an immigration bill that he’s willing to sign. This is, quite literally, Hobson’s choice.
Looking back, I think few now would quarrel with the decision to adopt the Constitution or Lincoln’s resolve in preserving the Union and the Civil War Amendments.
As to the New Deal, in hindsight it provoked only tepid progress against rampant unemployment. In 1938, six years into FDR’s presidency, unemployment spiked at 19%, almost as high as it was when FDR took office. The event that really pulled the United States out of the Depression was entry into World War II. Of course some features of the New Deal, notably Social Security, are stitched into the fabric of most Americans’ expectations of the federal government. But Social Security is actuarially doomed absent significant changes in eligibility and benefits.
In my view, Obama’s expansion and consolidation of power is a bridge much, much too far. He has run roughshod over the Constitution, but perversely the magnitude of his actions has made it difficult to challenge them in court because of the standing doctrine, which requires an individualized injury to sue.
Of course this poses the question of what to do about it. There are more vocal calls for a Constitutional Convention and detailed proposals have been made for amendments that would mandate shrinking of the government, the most prominent of which is Mark Levin’s proposal for the “Liberty Amendments.” While many of these are worth pursuing – I particularly like his redefined Commerce Clause – these are a long-run project.
The more immediate project is to win more elections with candidates who truly believe in a limited government. Unfortunately, the proponents of expanded government have succeeded in capturing the flag of “action” and labeling others as “obstructionist.”
But restoring the size of government to that envisioned by the Constitution is hardly obstructionist; it is greatest imperative of our time.