The Obama administration’s contempt for the Constitution and the rule of law has gotten out of hand.
Things have gotten so bad that two different bills are pending that would try to force the Obama administration to simply obey the law.
Even if they make it through the Democratically-controlled Senate, the administration has already threatened to veto the legislation as a violation of the separation of powers.
This is especially ironic given the legislation was introduced precisely because President Obama has eviscerated the separation of powers, ignoring Congress’s prerogatives in favor of unilateral executive action.
It wasn’t supposed to be this way. Contrasting himself with then-President Bush, Barack Obama emphasized during his presidential campaign that he “will obey the Constitution of the United States” and not try to do end-runs around Congress.
Obama promised he would not commit the U.S. to armed conflict without Congress’s consent, and that his administration will “set an example for the world that the law is not subject to the whims of stubborn rulers.”
The reality has been quite different.
The Obama administration has repeatedly engaged in actions that range from constitutionally dubious to blatantly unconstitutional.
This has combined with a consistent disregard for the president’s constitutional responsibility to faithfully execute the law into a toxic stew of lawlessness that consistently elevates the president’s authority and tramples on the rights of the American people.
Most egregiously, President Obama has thirty times ordered his underlings to delay, modify, and ignore various provisions of the Affordable Care Act (“ObamaCare”) with only the barest fig leaf of purported legal authority to do so. Recently, for example, the president ignored the plain wording of the law and delayed the “employer mandate” for firms with 50-99 employees.
Obama has also ordered the Department of Homeland Security to ignore extant law and behave as if the failed "Dream Act" had passed.
The latter has probably destroyed any hope for bipartisan immigration reform through the end of Obama’s presidency, as many Republicans understandably don’t trust this administration to implement any new enforcement provisions.
Obama used the recess appointments power to appoint officials to high-level government positions when the Senate was not officially in recess--an action even Bush administration, so harshly criticized by Obama and others for alleged abuses of presidential authority, declined to take when a Democratic Senate blocked its nominees. (Lower courts have consistently ruled against the Obama administration on this issue, and it’s now before the Supreme Court).
Contrary to his campaign promises, Obama has launched a bombing campaign in Libya without Congressional approval. He also failed to heed the War Powers Act’s provisions requiring him to either get Congressional approval or withdraw U.S. forces after ninety days, even though his own lawyers at both the Defense Department and the Office of Legal Counsel told him it was legally required.
Meanwhile, the president has allowed left-wing political appointees to run constitutionally amok in various executive branch departments.
The Obama administration has taken such extreme positions regarding environmental and land use regulations that it lost a series of three Supreme Court cases raising property rights claims 9-0.
To lose these cases so decisively was no mean feat, given that property rights get only minimal protections under modern jurisprudence.
The administration also lost 9-0 when it argued that religious bodies have no religious freedom right to choose their clergy, a position even Obama Supreme Court appointee Elana Kagan deemed "amazing."
The Obama administration has done significant damage to the Constitution, civil society, and the rule of law.
Future presidents will be tempted to rely on Obama administration precedents to expand even further federal power in general and executive power in particular, to enact their policy agenda regardless of constitutional constraints, to enforce law selectively and unilaterally change the law when it suits their interests, to use military force without Congress’s approval, to ram through presidential appointments without confirmation votes, and to let their more extreme political appointees promote constitutional positions that please core political constituencies but do violence to the Constitution.
Some Republicans may even look forward to the schadenfreude they will experience when liberals complain about a Republican president abusing his authority based on precedents established by the Obama administration.
But in the end, constitutional fidelity and the rule of law are too important to become subject to partisan one-upmanship.
Hopefully, the lesson future administrations will take from the Obama administration's constitutional foibles is not, "how can we also get away with such things," but "how can we restore the rule of law?"
David E. Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law. He is writing a book about the Obama Administration and the Constitution.