Obama and a Constitutional Tipping Point
Reality Check
Malcolm Gladwell made famous the phrase, "the tipping point." That man has a knack for book titles.
The tipping point takes place at the end of a long process. The favorite example is a pile of sand, which is built up over a long period of time. Then, without warning, one additional grain of sand is dropped onto the pile, and the whole thing collapses. That is the tipping point.
We have to understand this: tipping points take place only after long processes have built up conditions in which a tipping point is possible. The key to understanding the tipping point is to understand the process that preceded it. Don't blame the tipping point. Blame the process. Don't worry about the tipping point. Worry about the process. Once the process continues, the tipping point is inevitable. You have to stop the process. More to the point, you have to reverse the process. You have to slowly remove grains of sand from the pile, and you have to do this without triggering the avalanche. It is tricky business.
A SEMI-IMPERIAL PRESIDENT
We are witnessing one of the strangest episodes in American history. Critics of Obama are saying that he is part of the imperial presidency, not because he is enforcing a bad law, but because he is selectively not enforcing a bad law. The key fact about Obama, with respect to ObamaCare, is this: he is running a semi-imperial Presidency. There are some really bad provisions in the law, and for political reasons, he has decided not to enforce them in a Congressional election year. He is giving us greater liberty, at least temporarily, which I think we deserve. I'll take what I can get.
This is a strange fact of Obama. He talks an imperial line, and he follows a semi-imperial policy. He did get us out of Iraq. Anyway, he got the visible troops out. He didn't shut down the 14 major bases. He says he is going to get us out of Afghanistan. Naturally, Republican hawks are aghast. They want the troops to stay in Afghanistan indefinitely, meaning forever. They want to extend the imperial legacy of Bush II. If you want to talk imperial Presidency, talk Bush II. For that matter, talk Bush I. He got us into the Gulf War. He invaded Panama. He made popular the phrase, "the New World Order." Clinton extended his foreign policy, and Bush extended Clinton's, and then escalated it. Now Obama is tentatively reversing it. Yet he is regarded as an imperial President.
Presidents in the past have refused to enforce laws they didn't like. This was not done openly. They simply sent word to the Justice Department that "there are other priorities." Money was used to enforce other laws. A President never went public to say that he was not going to enforce a particular law. He simply did what he could, behind the scenes, without leaving a paper trail, to make certain that the Department of Justice did not enforce something that he did not think ought to be enforced.
Obama is different. He is the first President who has ever publicly made a statement like the following: "I've got a pen, and I've got a phone." He is the first President ever to announce openly that he could use executive orders to get what he wanted, despite the fact that Congress refused to give him what he wanted. In other words, he has been blatant in saying what Presidents have been doing ever since Teddy Roosevelt.
What is different about Obama is simply that he is so verbally blatant. What is not different about Obama is the amount of executive orders being signed. They have all done it. The worst was, as you might expect, Franklin Roosevelt: over 3,500. But Wilson was bad. Among Republican Presidents, who was the record-setter? This will amaze you. To identify the culprit, click here. (History can fool us, if we don't honor Casey Stengel's dictum: "You can look it up." We have the Web. So, let's look it up.)
In any case, with respect to changing the country, executive orders are small potatoes. Large potatoes, meaning great heaping mounds of mashed potatoes, are published every day in the Federal Register. In three columns of fine print, 80,000 pages a year of administrative law are published in the Federal Register. The President does not see this. Congress does not see this. The only people who see this on a piecemeal basis are corporate lawyers who have to implement the law in their firms, or else take the government to court.
I see Obama as basically cautious. He really does not want confrontation. He never has. I wrote about this before he was elected. He only got one law of any significance through Congress, and now he is refusing to implement large portions of that law. He has made this decision, based on political reasons -- Congressional elections this year -- but for whatever reasons, I think we should rejoice. A bad law is not being implemented. This is a good thing.
If this were establishing some fundamental precedent, that would be different. But this is simply an open admission of what has been going on in this country for over a century. This is not new. This is only blatant.
Congress passes laws. Presidents sign the laws. The next President may decide he doesn't want to enforce the law. He may enforce a little bit of it, so as to avoid a public confrontation, but he pretty much decides that he doesn't want something to be enforced, and he sends down word unofficially, yet of course officially, to this effect.
Do we have an imperial Presidency? Of course we do. But we've had it for over 100 years. We certainly had it under the Lincoln administration, but then Presidents after Lincoln backed off. In Andrew Johnson's case, Congress simply would not let him do anything. He couldn't even control his own cabinet appointments. He was stripped of all power. But, with Teddy Roosevelt, things reversed. President Taft is not known as a trust buster, but he was. The Progressives hailed Wilson as the national savior, and they never really abandoned this position. The Republicans took over in the 1920s, but Hoover was an imperial president. Murray Rothbard's book, America's Great Depression, shows just how bad Hoover was. Then Franklin Roosevelt escalated the process. From that time on, the federal bureaucracy has been essentially a self-aggrandizing agency of imperialism.
What I'm trying to get across is this: there is nothing new going on in Washington today. Obama is less of an imperial President than Bush II was.
FROM NEUSTADT TO SCHLESSINGER
Back in 1960, an obscure political scientist named Richard Neustadt wrote a book, Presidential Power. It was published just prior to Kennedy's election. It soon became a key book on college campuses around the nation. Kennedy seemed to be the book's incarnation. Liberals loved his style, and they embraced the book.
Kennedy was not an imperial President. He exercised very little power. He didn't accomplish much of anything, other than to become a target in Dallas. The Kennedy mystique was a carefully constructed mystique, but in areas that mattered, such as civil rights, he did not push his agenda with any fervor. That was done by Lyndon Johnson. Kennedy wanted to cut top marginal tax rates, but he never did. That was for Lyndon Johnson to do in 1964. Kennedy got the credit retroactively, meaning posthumously, but in fact he was pretty much a wimp when it came to exercising Presidential power. But he had the mystique of possessing Presidential power, and so Neustadt's book became a symbolic tract of his New Frontier. Standard New Deal liberals, prior to the New Left rebellion in the second half of the 1960's, were favorable towards Neustadt's book. Today, it is long forgotten, as political tracts usually are.
Only after Richard Nixon was re-elected in 1972 did the Kennedy sycophant and FDR apologist, the old far Left liberal historian Arthur Schlessinger, Jr., write his book, The Imperial Presidency. His three-volume biography of Roosevelt is almost a classic case of Left-wing hagiography. He loved Roosevelt's use of power. The most Imperial of all America's imperial Presidents was Franklin Roosevelt, and Schlessinger was his most important single apologist in the academic world in the 1960's.
I won't say that Obama is all hat and no cattle. But he has a very large hat and only a few scrawny steers. He is now a lame-duck President. He is not going to get any major piece of legislation through Congress, unless the House of Representatives goes Democratic in 2014, which I think is highly unlikely.
An obscure academic testified on Congress recently. He said that we are at a constitutional tipping point. I remain skeptical. We had a constitutional tipping point in 1861, and then a whole series of mini-tipping points thereafter, beginning in 1901. To single out Obama as representing the tipping point may turn out to be prescient a decade from now, in the sense that he may drop that one extra grain of sand that leads to the avalanche of sand. But it was the building up of those grains of sand, President by President, that has created the potential for a tipping point. Tipping points come at the end of a process. We are supposed to pay attention to the process before it gets anywhere near a tipping point.
Only a few Americans have ever heard of the Federal Register, and of those few who have heard of it, almost none of them has spent more than an hour or two looking at it. The Federal Register is the key to understanding the way the federal government has invaded our lives. The rest of Washington is mostly noise -- the noise of politics. It muffles the sound of an army of bureaucratic termites who are eating away the foundations of liberty.
The Federal Register is a symbol, but unlike most symbols, it has substance. It is both the symbol and the power. We don't usually see such a thing, but this is the case. But it is a symbol only to a handful of people who understand what it does, and even more important, what it represents, namely, the triumph of administrative law. It is this triumph, more than anything else in modern times, that has threatened the liberty of the West.
CONCLUSION
The great Harvard legal historian Harold Berman fully understood this process, and warned about it in 1983, in the crucial Introduction to Law and Revolution. Few people have read it. I did, and it has had a profound impact on me. This is why I don't take Obama seriously. I take Berman seriously. I have for 30 years.
People tell you, "You had better read this." I am telling you, you had better read this: the first 45 pages of Law and Revolution. It is online for free, at least for now. Download the file. Save it to your hard disk. Then print out the Introduction. Sit down at your desk. Get out your highlighter. Spend two hours. Maybe three.
This article describes the process. It has been building up for a century. A final Constitutional tipping point may come. But let us not be naive. The New Deal was the tipping point. As Garet Garrett said in 1938: the revolution was.
We are unquestionably heading toward a tipping point: the Great Default. The federal government will not be able to sustain Medicare and Social Security. That will be the greatest tipping point of all.