After a politically disastrous 2014, President Obama appears to be enjoying something of a resurgence in popularity. Press reports indicate that his approval ratings have gone up, and he certainly seems to have regained confidence and energy. Poll numbers have nothing to do with success in any meaningful sense, being mere snapshots of current feelings as gauged and manipulated by professional pollsters. Nonetheless, they tell us something about the types of things that sway a given people as a political force. Not surprisingly, the news is not good for what remains of the republic.
What has Obama done to make himself less unpopular? He has suspended prosecution of duly constituted laws regarding those residing in this country illegally, extending presidential protection and even federal benefits to millions who are breaking the law. He has set about systematically emptying the prison in Guantanamo Bay, Cuba, of its terrorist residents, unilaterally rendering null laws calling for the facility to be maintained. And he has issued hundreds of regulations, imposing hundreds of billions of dollars in costs, instituting policies specifically rejected by Congress, our lawmaking body. Seizing control over “wetlands” (we used to call them “swamps”) and working to essentially shutter coal-fired energy plants, he has instituted a vast and vastly expensive environmentalist program in defiance of the law. The Obama Administration has been busy in other ways as well, normalizing relations with the communist dictatorship in Cuba, moving toward normalized relations with the radical Islamic regime in Iran, declaring through his Attorney General that crossdressing is protected under federal law, and on and on. Some of the policies Obama has opposed (e.g., indefinite imprisonment without trial for probable combatants in a “war on terror”) may in fact be ill considered. The point is that this President has managed to stem and partially reverse his freefall in popularity, not by upholding the law of the land or working with our lawmaking body to improve it, but by showing increased contempt for law in pursuit of his own agenda.
This is not a sudden development. The Progressive movement of the early twentieth century succeeded in imposing the idea of a presidential agenda on the nation through a series of reforms intended to democratize and, more fundamentally, to centralize political power. The very idea of a programmatic “state of the union” address laying out grand schemes of reform was simply unknown for most of our history. George Washington and his successors into the twentieth century simply sent reports to Congress laying out overall conditions within the executive branch. Thanks to the same people who gave us the administrative state, presidents now are assumed to be in charge of national policies on all aspects of public, private, and social life.
Today’s presidents are given “the first 100 days” of their administrations to do something grand before “gridlock” (that is, Congressional attention) sets in and they have to actually explain themselves and justify specific policy proposals to lawmakers. That these proposals, concerning as they do changes in the law of the land, ought to originate from those constitutionally entrusted with the power to make law seems to have escaped the attention of Americans in general. But Obama has taken things much further than even his recent predecessors. For Obama rules in contempt of Congress, waiving, amending, and overruling by decree the laws he himself had a hand in formulating and putting on the books.
Some Republicans have been particularly incensed that recent Obama policies, trending hard left as they do, go against the “message” sent by the electorate in the last election. There even was some snickering at Obama’s response that most people did not vote, so his policies might be seen as representing a majority whose will was not reflected at the ballot box. It would be easy to point out that Obama’s logic makes a mockery of the democratic process, giving rulers blanket justification for doing as they will under the guise of “serving the people.” But there is a worse problem with the reasoning involved here, and it concerns the Republican as well as the Democratic side of the argument. The notion that a president should be judged according to how well he puts “the people’s will” into action through political power is fatal to constitutional government. Even if Republicans are right that the recent elections were a specific rebuke of Obama’s radical agenda of extending and solidifying federal power, the important question in a republic is not how best to operationalize that stated policy preference. Constitutional government rests on the realization that policy preferences of the moment cannot safely be “put into action” as soon as they are expressed. Indeed, the point of constitutional government is not to do so, but rather to maintain stability and the rule of law, often in spite of the policy preferences of electoral or even governing majorities.
Obama’s job is not to follow the polls and act accordingly. Nor is that the job of members of Congress. The job of elected officials, once their character, intelligence, and policy preferences have won them office, is to pursue those preferences within the structures written into the Constitution. This means that a president who does not convince Congress to pass legislation he deems necessary must occasionally (sometimes often) accept defeat. As for Congress, it means that its members must take responsibility for actually legislating and for “defending their turf” by refusing to allow presidents to rule by decree or executive order.
Given the current condition of our constitutional government and, in particular, the contempt with which Obama treats the legislative process, it seems clear that Congress’s first job is to protect that process, insisting that it be followed and refusing to fund policies implemented through extrajudicial means. This is not obstructionism, but rather recognition of constitutional duty. As for the current trend in presidential actions, the very fact that it is tolerated and even approved of by substantial numbers in our populace, along with most of our intellectual classes, shows how far gone we are in a culture of lawlessness. A president who sought to act this way in a healthy republic would long ago have been stopped, if necessary through impeachment and removal from office.
Many nations have or have had executive leaders who regularly check the pulse of public opinion, informally or through formal plebiscites. These leaders have been hailed by many for their transformative power. From Napoleon to the latest dictator of an “emerging democracy” they all have been tyrants. Our movement toward a plebiscitary democracy, even if it is one in which Obama is not especially popular, is a movement away from constitutionalism and the rule of law. But then constitutional, free governments are fit only for virtuous peoples, capable of governing themselves in their own fundamental associations and jealous enough of their liberties to value them more highly than the power of having their desires of the moment put into political action. It becomes increasingly clear by the day that Americans no longer have such a character.
Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law, and he is a Nomocracy in Politics Contributor.