The Obama Administration and the Rule of Law (or lack thereof)

If there is one thing that characterizes the Obama administration, it is its near total disregard for the rule of law.  Flouting the letter of the law is by no means unique to this administration, but it has displayed an obvious zeal in the tactic.  Whether it’s passing the Patient Protection and Affordable Care Act through budget reconciliation, using prosecutorial discretion to de facto enact legislation that otherwise did not pass, or any number of constitutional violations in national security policy, the Obama Administration truly seems to perceive the law as merely a barrier to its power rather than its source.

The irony is that I favor much of what the Obama Administration has done through executive discretion.  Recently, Attorney General Eric Holder decided to end mandatory minimum sentences for low-level drug offenses.  As admirable as this is, the fact that it is being done through executive discretion, i.e. not enforcing the law as written, makes the entire legislative process a farce.  Similarly, the administration decided to not enforce the unconstitutional Defense of Marriage Act, another laudable goal achieved through illegitimate means.  And when the DREAM Act didn’t pass, the administration decided to not enforce immigration laws as written, thus making the DREAM Act a reality.

I can hear my Obama supporting friends and acquaintances saying how this is a good thing, and that those policy ends are justified by their means.  This is a shortsighted argument.  The policies that are being enacted solely through executive power may be beneficial today, but what about tomorrow?  If we allow the executive branch to make laws through selective enforcement or to ignore laws altogether (or entire constitutional amendments if you’re the National Security Administration), then what is the law but words on paper?  This already happens to some extent due to America’s muddled constitutional jurisprudence.  And in other countries, the laws truly are empty words to be cited when it suits those in power.  China is especially good at this.  China has a very liberal constitution.  It allows for equality; freedom of speech, assembly and religion; respect for human rights; the prohibition of arbitrary detention; an independent judiciary; and an elected National People’s Congress—“the highest organ of state power”.  But none of those things exist.  The power of the state lies solely in its monopoly of force, rather than the consent of the governed.

In America, the rule of law is still comparatively strong.  For now.  The rulings from the Supreme Court are still enforced despite that institution having zero enforcement power.  And even the mighty King Obama still occasionally pays his respects to the constitution by asking for congressional approval before bombing another country.  But that could easily change.  I’m anxious to see what happens if the House of Representatives votes against the resolution to attack Syria.  If the President stands down, it will mark a turning point for liberty in America.  If he does not, it will be the most egregious uses of executive discretion.

  • Case Jones

    An ignorant question but I’ll ask it anyway:

    When you say these exercises of power were unconstitutional, why weren’t they challenged? Are budget reconciliation and prosecutorial discretion not ways, maybe not preferred, to see policies realized, and not unconstitutional? Without knowing anything about DOMA or the drug offenses, your description of them seems to be a lack of enforcement, which would seem to be illegal.

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