The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
That's the question my article in this month's Commentary tries to answer.
If you don't already think that this administration is contemptuous of the Constitution and the rule of law, this article is unlikely to persuade you, because that's not its primary focus. I have an almost-completed book manuscript circulating to publishers as we speak that addresses that issue in great detail, so to see the full case you will have to wait for that. (I'm also happy to consider speaking/debate invitations.)
But for those of us who are already convinced that this has been an unusually lawless administration, it's worth asking why especially since Obama ran-sincerely, I think-on fidelity to the Constitution and restoring the rule of law after the Bush Adminstration's constitutional misadventures. The article elaborates on the following reasons:
(1) The administration has aggressively pursued unilateral executive action in the domestic sphere because "political reality has crushed its dreams of a new era of progressive government." If the Administration couldn't achieve all of its progressive goals, it was sure as heck going to preserve Obamacare, even if it had to play fast and loose with the law.
(2) Obama comes from an intellectual tradition that is very skeptical of traditional notions of the rule of law and constitutional fidelity, and that tends to conflate law and politics. I note that "it's hardly news that government officials want to stretch their power as far as they can without clearly violating the law," but, "what is news, however, is that top Obama-administration officials, as well as the president himself, seem to see this as a desirable way of governing, something to brag about rather than do surreptitiously. "
(3) "Previous presidents who engaged in wrongdoing have had members of their own political party who were willing to stand up and say so. But with Washington politics more polarized than they have ever been since the Civil War-in part because, unlike for most of American history, the Democrats and Republicans have clearly divided into liberal and conservative factions-one cannot count on partisans for one side to criticize their own."
(4) The traditional media establishment, which once saw its role as serving as a nonpartisan watchdog investigating and thus checking abuses by the government, has changed, and has shown little interest in Obama Administration foibles. Hyperpartisan blogs like Media Matters are even worse. As one former liberal blogger puts it: "The incentives are to play ball, not to speak truth to power. More clicks. More action. Partisanship drives clicks."
(5) The arrogance of post-1970s graduates of elite coastal universities, who believe that superior educational credentials make you superior more generally.
(6) The same elite culture, in its dominant liberal faction, tends to treat anyone to the right of a moderate Democrat as a wild-eyed extremist not susceptible to reason, and it's hard to make the case that one should compromise with extremists when unilateral executive action is available.
Again, I elaborate on these points in some detail, and they are, I think, much more subtle than a one or two sentence summary can convey. So read the whole thing.