The Real Constitutional Crisis Is Hidden

It's the Bush-Obama record of surveillance and lack of accountability—and not executive action on immigration—that ought to concern citizens.

Jose Luis Magana/AP

“By acting lawlessly and assuming legislative power, the Obama administration is driving full speed ahead to a constitutional crisis, tilting the scales of our three-branch government in his favor and threatening to unravel our system of checks and balances,” Representative Robert Goodlatte, a Virginia Republican, said December 2. He was speaking about President Obama’s “deferred action” program for undocumented immigrants. But much the same sentiment has been expressed nationwide since then, about Obama’s entry into a climate agreement with China, his promulgation of new regulations under the Clean Air Act, his decision to reopen relations with Cuba, and his designation of Alaska’s Bristol Bay as indefinitely protected from oil and gas drilling.

Take this column by Victor Davis Hanson: “Until now there were two types of peaceful American change. One was a president, such as Franklin D. Roosevelt or Ronald Reagan, working with Congress to alter American life from the top down by passing a new agenda. The other was popular reform pressure.” Obama, Hanson argues, “has introduced a quite different, third sort of revolution ... bypassing Congress through executive orders and presidential memoranda of dubious legality.”

Is this true? Are we at a crisis that threatens the entire system? Do the American people face a lawless, overreaching executive rampaging through immigration and environmental policy?

There is a crisis, and it is serious. But it is not the crisis that Goodlatte or Hanson are talking about. It has nothing to do with immigration, climate change, clean air, or oil and gas. Some of the people yelping about “overreach” are just boys crying “Wolf!” Others, I fear, are themselves wolves in waiting.

Cries that one president or another has become a Caesar are a regular feature of American history. These charges, sometimes valid and sometimes silly, are inevitable because of design flaws in the system. Article II, Section 2 of the Constitution, which claims to set out the president’s powers, is so sketchy that virtually no one on either side of any issue really consults its text in practical situations.

So presidents have asserted their authority, and Congresses have sought to rein it in, since the dawn of the republic. These disputes are usually settled by negotiation between the branches. That has been the pattern since 1793: Presidents assert, Congresses protest, negotiations ensue, the system muddles on. Nothing Obama has done in his six years in office comes close to the kind of assertions made by presidents like Andrew Jackson, Abraham Lincoln, Andrew Johnson, Theodore and Franklin Roosevelt, Woodrow Wilson, Harry Truman, Richard Nixon, or George W. Bush.

The key to assessing the relative danger is the basis for a president’s claims. Does the president assert that he has an “inherent” power to act as he sees fit, regardless of what Congress does? Some presidents (of both parties) seem to have shared the belief that, as Richard Nixon once put it, “when the president does it, that means that it is not illegal.” Most prominent among them was George W. Bush, who secretly and unilaterally suspended valid treaties, statutes, and parts of the Constitution in the exercise of his “inherent authority.”

Other presidents have asserted authority derived from statutes passed by Congress. They admitted that Congress could rescind the authority, but until it did, they insisted on their own reading of the law. Lincoln was a genius at this, and Barack Obama fits squarely in the same tradition. At no point has he claimed “inherent” authority that Congress could not affect. He has instead argued that existing law gives him power and dared Congress to rescind it.

If Congress has seemed supine in front of Obama’s claims, the blame should fall squarely on the GOP caucus. Since 2009, Republicans have tried to pretend that the president is, somehow, not really in office, because, well, they shouldn’t ever lose an election. This mummery is not just offensive; it represents unilateral disarmament in the unequal struggle between White House and Capitol Hill. Like most opposition parties, the Republicans don’t have veto-proof majorities. The only way Congress can block a president from taking actions it dislikes is to enact laws—laws and appropriations bills that a president will sign. To do that, the opposition must be willing to sit down and negotiate with the president, giving him part of what he wants in exchange for part of what Congress wants.

That kind of negotiation can’t happen if one side wants to pretend the other is illegitimate. Because their base demands this solemn charade, the Republicans have been reduced to silliness that makes them look weaker—multiple useless votes to repeal the Affordable Care Act, shutdown and threat of default, and, silliest of all, the Big Bad Lawsuit, which is the rough equivalent of running away and yelling, “I’m telling Mom!”

As Jack Goldsmith noted last June, “It takes a lot of work for Congress to exercise its constitutional responsibilities of investigation and oversight and pushback. So much easier to call in the lawyers and authorize them to bring a high-profile lawsuit, especially with mid-terms around the corner! And so one can only sigh when House Judiciary Committee Chairman Bob Goodlatte, who should be leading the charge against the President in his committee, instead defends the lawsuit on the grounds of ‘people standing up for the balance of power.’”

Whether it’s immigration or carbon emissions or Cuba, the disputes that so bother Hanson are really just politics as usual. So what is the crisis? A good rule of thumb is that to find the real danger in a situation, look at what neither side wants to talk about.

Consider these questions: What if the government asserted the power to engage in major military operations without congressional authorization, secretly eavesdrop on private conversations, collect and store data on innocent citizens, use lethal drone strikes against civilians outside war zones, and conceal evidence of torture and war crimes even from Congress itself? Would that be a constitutional crisis?

The true danger to the republic right now is an executive establishment that, under the past two presidents, has taken on itself the role of deciding where and whether to make war, has made a mockery of constitutional and statutory restraints on surveillance, and has first conducted and then persistently concealed a shocking campaign of torture. The problem is not that Obama is better or George W. Bush was worse—what is striking instead is the continuity between administrations on these matters.

Does anyone believe that the National Security Agency has changed its stripes since the news of its massive surveillance program broke in 2013? Top officials went to Capitol Hill, took a solemn oath to tell the truth, and lied. Have they been punished? Has the executive branch even rebuked, much less prosecuted, anyone at the Central Intelligence Agency for its use of torture and its systematic lies about it? In the world of truth and reconciliation, “We tortured some folks” doesn’t go very far—especially when no one is going to face criminal justice for committing torture and war crimes, or even for unlawful attacks on the U.S. Senate itself, and even more so when the agency itself insists defiantly that it did nothing wrong.

Democrats, when they controlled the Senate, weren’t able to produce a reasonable debate on the scope and limits of Obama’s new war with ISIS or of the limits on NSA surveillance. Does anyone believe that the new Republican majority will combat the national-security state? Evidence suggests instead that their leaders want to protect it, so they can command it two years from now.
Goodlatte could help change that.

But dealing with real crises is scary. It’s much more fun to throw tantrums and run to Mom for a writ of Barack’s Picking on Me.