President Obama has stopped enforcing laws. The Senate has stopped passing laws. Who's the more insidious threat to the Constitution?
The conservative meme of the day is that Obama is "a domestic threat to the U.S. Constitution," in the words of the Washington Times' Joseph Curl. "From the very beginning, the president and his administration made clear they had no intention of enforcing laws they didn't like," Curl writes, putting Friday's executive order delaying the deportation of young illegal immigrants on top of a pile of undefended laws, noting the Justice Department is no longer defending the Defense of Marriage Act, has stopped prosecuting medical marijuana growers, and has given many states waivers to No Child Left Behind. Curl hints that impeachment might be in order.
The Drudge Report linked to Curl's story, but his isn't the only one with sweeping maybe-constitutional-crisis language. Andrew C. McCarthy writes at PJ Media says Obama is "continuing the dramatic shift from American constitutional democracy to rule by executive fiat that has marked his tenure." Obama said these immigrants were Americans "in every single way but one — on paper." The paper in question, McCarthy said, is the law:
The Constitution and congressional statutes are written on parchment. That is the only relevance of “paper” in this equation — as the “hard copy” of our social contract and of the laws enacted pursuant to it. Under the Constitution, Congress, not the President, is endowed with the power “To establish an uniform Rule of Naturalization.” Congress exercises this power by passing laws. Under the Constitution, which Obama took an oath to preserve, protect and defend, and under the laws it is his duty to execute faithfully, illegal aliens — no matter how sympathetic their plight, no matter how blameless they may be for the illegality of their status — are not citizens of the United States. They are not Americans. Period.
In a National Review post titled "Executive Overreach," John Yoo writes, "President Obama’s claim that he can refuse to deport 800,000 aliens here in the country illegally illustrates the unprecedented stretching of the Constitution and the rule of law." Well guys, he would know. Yoo is the Bush administration aide who wrote memos authorizing torture of terror detainees. Once asked if congressional law could stop the president from authorizing interrogators to crush the testicles of a detainee's child, Yoo responded, "I think it depends on why the President thinks he needs to do that." Yoo as critic of executive overreach reaches new heights of hypocrisy.
Mitt Romney, too, protested Obama's executive order. "He was president for the last three-and-a-half years and did nothing on immigration," Romney said on CBS's Face the Nation. "Two years he had a Democrat House and Senate, did nothing of a permanent or long-term basis.... My anticipation is I’d come into office and say we need to get this done, on a long-term basis, not this kind of stop-gap measure."
Poor naive Mitt Romney. This government outsider thinks you actually pass laws in Washington! But he is right about one thing: Immigration reform would never pass a Republican-controlled Senate. The Atlantic's James Fallows has written extensively about Senate Republicans abuse of the filibuster since they've been in the minority for the last six years. Fallows writes:
What had been for 200 years an exceptional tactic has become an everyday impediment. De facto, the Constitution has been amended to change the Senate from a majority-rule body to one requiring a 60-vote "supermajority." And since the Senate already heavily over-represents small-population states, in effect Senators representing a quarter to a third of the nation's people hold a veto over all items of public business, and have repeatedly exercised it.
Once upon a time, Fallows told On the Media, it took 67 votes to break a filibuster, but the filibuster had to be real -- actual speeches for hours on end on the Senate floor. In 1975, that rule was "replaced by a kind of gentleman's agreement where it only took 60 votes to break a filibuster, but the opponents didn't have to actually do anything." Then, in 2006, when Democrats took control of the Senate, there was a big increase in the use of filibusters, as you can see in this Wikipedia chart:
This is why so many bills fail, even though a majority of senators vote for them. The Dream Act, which would have created a path to citizenship for college students and kids who joined the military, failed in late 2010, when Democrats still had a majority, because only 56 of the 100 senators voted to overcome the filibuster. The House had already passed it.
The term "The Living Constitution" was first coined as the title of a book by political scientist Howard Bain to describe how the literal words in the document could be interpreted and reinterpreted to fit the needs and wishes of a changing society. It's been a bugbear for conservative jurists ever since. Seventy years after Bain, Justice Anton Scalia wrote, "The ascendant school of constitutional interpretation affirms the existence of what is called The Living Constitution, a body of law that ... grows and changes from age to age, in order to meet the needs of a changing society," adding, "The American people have been converted to belief in The Living Constitution, a ‘morphing’ document that means, from age to age, what it ought to mean."
Perhaps, though, it would be more accurate to say that our political system is guided by a "Living Constitutional Crisis." Neither side -- those aghast that a president would not follow the steps laid out in the Constitution to enact a law, those aghast that Congress would not follow the steps laid out in the Constitution to pass a law -- seems willing to follow its position to its most logical extreme. But, as Scalia wrote, the notion of a Constitutional Crisis is elastic, growing and changing from year to year to fit whatever needs a society -- or at least its political partisans -- require.