“…he shall take care that the laws be faithfully executed…”
I met a good friend of mine for coffee one recent morning; he’s
also in “the business.” One of the
things we discussed was the role we play in clients' lives, including how much
of what we earn is attributable to simply keeping them from making
destructive financial decisions. The
general rule I follow is that it’s my job to talk down the roaring bull and keep
people invested in the depths of the bear.
Investors are mercurial, but they can succeed fabulously
if they first develop, and then follow, a strategic financial road map. Financial hyperventilation is something I
fight for both fiduciary and personal reasons.
Similarly, I’m leery of conspiracy theories – partly as a result of occupational hazard and partly because they strike me as distastefully
goofy. While it’s true that since I favor limiting the
federal government’s role in our social institutions I’m generally less annoyed by Fox / Drudge than MSNBC / Huffington, I definitely see that
political inflammation is a bilateral malady.
There is one conspiracy theory that may be worth watching,
and that has to do with President Obama’s strategy to use executive orders in place of law-making. The
balance of power in our federal government may actually be shifting – I don’t
know, but am starting to wonder – which should concern everyone. Although, I think the reasons it’s shifting
are not conspiratorial, but practical.
Jump back first to 2008.
The main feature of then candidate Obama’s wide popularity was his
commitment (and perceived ability) to change the tone in Washington. Four years prior, during his famous speech at
the 2004 Democratic National Convention, he drew raucous applause for his line
that “There isn’t a Liberal States of America, or a Conservative States of
America, but a United States of America!” The collective hope for that change in '08 was powerful, and amplified by the building financial crisis.
What ensued after the 2009 inauguration was something
else. Yes, the Republicans in the Senate
and House were resistant to his grand plans – was that really a surprise? The country had also handed both houses of
Congress to Democrats, though, who simply acted on what they were given the
opportunity to do. Republicans were in
the minority, and implementing the President’s ambitions didn’t require
them. Dodd-Frank, the Affordable Care
Act, the stimulus bill – all Progressive ideals – became
law easily.
The conciliatory tone of the Obama campaign gave way to hostility
toward opponents, including, among other things, his practice of publicly castigating specific private enterprises. It
began to seem that the hoped-for tone change in Washington was to come about by way of
defeating certain mores and ideals, rather than conciliation and compromise. Republican objections became obstructions to
his plans, not legitimate views demanding his ear.
But, these things change – they always have, anyway – and the
Republicans took back the House in 2010.
How? It wasn’t racism. If the Tea
Party reversal of the House was really a racist phenomenon, then why weren’t
they more empowered in 2008 than 2010? Like
cigarette smoking, the cultural trend is (gratefully) running away strongly
from racism. How about
gerrymandering? Nah: that phenomenon is
offset by the leftward cultural demographic pull. 2010 can only be seen as a rebuke to the President and House and Senate Democrats. The country had yearned for the President and
Democrats to change the tone in Washington, but instead they gorged themselves
at the table of statist ideals.
About this leftward cultural headwind for the Right. I don’t
think the Republican Party has at all come to terms with it yet. Republicans are fascinated with President
Obama’s use of social media to get out the vote, and they keep looking for
African-American or Latino leaders who can appeal primarily on the basis of
race. But social media is a tool to be
used at the margin. And do Republicans
really imagine that Sen. Rubio is better qualified as an executive than Sen.
Obama was? Or are
they just hoping that because he’s of Cuban descent, he can distract the right
groups into voting with them? Republicans
have to address the cultural change in order to even remain at the table. That involves articulating, in a consistently edifying
manner, why we should shift power from Washington DC to Jefferson City, Talhassee, Sacramento, Albany, etc. It also involves nominating honest-to-goodness
political leaders who understand how to move the country that direction.
***
Our federal government balances power through several means:
a Constitution, an upper and lower house of the legislative branch, a separate
executive branch – the major distinction between our “small r” republican
democracy and a parliamentary system – and an independent judiciary. Our Founding Fathers recognized that making
laws and implementing them were two distinct functions better handled by two different governmental branches. They also understood that the whims of the voting
populace needed to be checked by a hard-to-change anchor: the
Constitution. And, if either the
President or Congress should run afoul of this supreme law of the land, they
saw it as the judiciary’s job to correct them.
Even as my cynicism grows, I’m still deeply moved by how
this system is engineered to preserve individual liberty. I thank God that I’m able to enjoy life in
this short slice of human history.
A former Constitutional law professor, President Obama knows
this stuff like the back of his hand.
Here’s a video from a 2011 town hall meeting on Univision. Expanding amnesty for immigrants who are here
illegally (is that the PC way to say it now?) isn’t a 2014 idea. Three years ago, the President articulated the
importance of the balance of power and his understanding of his constitutional
limitations. Now balancing power is out
of vogue, at least on Pennsylvania Avenue.
What’s in are “I’ve got a pen and I’ve got a phone,” and “So sue me,”
and a willingness to “act alone” through executive order to solve the nation’s big
problems.
Why is the balance of power out of vogue? The answer depends on whom you ask. Ask certain Democrats and they may tell you
that it’s because Republicans are out of step, angry white men who are
obstructing the President’s plans out of personal hatred for him, and that Mr. Obama has to act in this way to get "things" done. Ask some Republicans and you might find a
fear that he’s secretly a Muslim imam, waiting to install Sharia.
I don’t buy either of those lines. I think what we’re witnessing is a
conflagration of skill-set, ideology, and a genuine sense of civic
responsibility.
***
I’ve written before about the President’s skill set – you can read about it here if you want. The bottom line
is this: the Presidency is an executive leadership role. Mr. Obama neither had, before coming to
office, the experience of learning how to lead, nor has he displayed the passion
to do so. He speaks; he campaigns; he
criticizes. But he doesn’t lead.
I also have come to see that he genuinely doesn’t like
Republicans. He doesn’t see a point in
dealing with them because he understands their views as threatening to his grand societal ambitions. And he really doesn’t
like politicking with them. Again, I
have to say that I share that distaste for political maneuvering with the
President.
The problem is, our Constitution supposes that the
President (whichever party he or she belongs to) would be not an ideologue, but an executive administrator operating within a political system. Because President
Obama is neither a leader nor does he like the practice of political
compromise, he’s stuck in a rut within our system. Think Ronald Reagan and Tip O’Neill. Think Bill Clinton and Trent Lott. Those guys were functional because they were
leaders and could work within the system.
But, I also think President Obama sincerely believes it's his job to solve
national problems. I often don’t see the
same problems that he does, nor do I agree with his solutions to the problems
on which we agree, nor do I even agree that an executive administrator is essentially and rightly a solver of national "problems." And more often than
not, what he sees as a U.S. problem, I see as a state problem. All that said, I’m still willing to give him the benefit of
the doubt on his intent to do good for us.
Here's the rub: what’s a guy to do who feels the responsibility to solve
problems but has neither the skill-set nor disposition to do so within the
system? Well, in Mr. Obama’s case, he’s
doing what he can to work around the system.
How? By selectively implementing
and executing laws already passed (e.g., the changes to the Affordable Care Act
mandates and implementation timing). By withholding his Justice Department’s responsibility to investigate and
prosecute wrong (Lois Lerner and the IRS).
By inventing the bizarre concept of “economic patriotism” and tasking Secretary Lew with finding non-legislative ways to thwart tax inversions instead of working with Congress to fix a horribly broken
corporate tax code. And by, if his own
statements about immigration reform are a foreshadowing, issuing executive
orders instead of working with Congress on legal immigration reform.
Acting alone is the only club in this guy's bag, and that’s the one he's using.
Acting alone is the only club in this guy's bag, and that’s the one he's using.
***
Gratefully, the U.S. Supreme Court has recognized the
problems with the acting alone thing.
Depending on your view of the main issues of the cases, the high court
has handed the Obama administration between thirteen and twenty 9-0 decisions countering
his use, or intended use, of executive power.
Like the famous axiom that news headlines are never about planes
landing safely, our attention is nearly always
focused more on the socially controversial 5-4 decisions. In reality, the Supremes see some matters almost identically.
The real distinction between Rep. Boehner’s lawsuit and
Sarah Palin’s inane invocation of impeachment is that Boehner has a real
argument about the Constitutional limits of executive power. Might a lawsuit yield political gain for
Republicans? It’s as likely to be
perceived as obstructionist as anything, so it probably will not actually benefit them. Do I therefore believe that Boehner has no ulterior motive? Of course he does. But, there exists a big difference here. Whereas impeaching the President for unlawful executive orders is, in the best case, Constitutionally questionable, and a guaranteed political noose, the Boehner suit has a real Constitutional
question at its core: can a President appropriately change and implement laws
as he or she sees fit? I believe that he cannot. That's an enormously important question needs to be
settled, no matter the political fallout.
No comments:
Post a Comment