The Temptation of Unconstitutional “Conservative” Governance

Conservatives must hold their self-proclaimed champions to account as a new Republican era begins in Washington.

By Rob Schwarzwalder Published on December 27, 2016

Conservatives are right to criticize the Left for the intentional subversion of constitutional governance through, among other means, use of the federal judiciary to obtain ends that legislatively prove elusive or simply impossible.

The same-sex marriage decision of June 2015 is a classic example: Overturning dozens of state marriage laws and the votes of more than 50 million Americans, the Supreme Court found a “right” to marriage between persons of the same-sex in an extrapolative and fanciful reading of Constitution.

In response, the late Justice Antonin Scalia wrote in his dissent, “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. … This is a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government. … A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

One could well point to the dangerous Kelo property rights decision and, of course, the Supreme Court’s ruling on the Affordable Care Act (“Obamacare”) as other recent examples. As to the latter, the Court ruled that the Act’s egregious penalty for not carrying health insurance was, hey, just a tax. Being financially penalized for a specific kind of inaction is constitutional, you see; who knew?

But, as they say in late-night TV ads, that’s not all.

“Bill Clinton proudly publicized his use of executive decrees in situations where he failed to achieve a legislative objective. Moreover, he repeatedly flaunted his executive order power to curry favor with narrow or partisan special interests,” the Heritage Foundation’s Todd F. Gaziano wrote in the early days of the George W. Bush administration.

Both Sides Have Taken Advantage of Executive Authority  

However, Republican presidents have done the same kinds of things. As detailed in numerous articles, GOP presidents have stretched the limited unilateral authority the Constitution gives to the Chief Executive as freely as have their Democratic peers. Of course, not all of these executive orders, proclamations, and directives are in themselves unconstitutional. Inarguably, though, many have either twisted existing law into a shape commodious with a given “strict constructionist” President’s desires — desired otherwise thwarted by a recalcitrant Congress or dubious judiciary — or have gone beyond the Constitution itself. What’s not forbidden is allowed, right?

Yet the often questionable mandates of Republican Chief Executives frequently are matched in their debatable constitutionality by congressional action.

It is up to We the People, through mid-term congressional elections, to force the hands of those who have promised us more restrained and constitutionally faithful governance to keep their word.

The 2003 House vote to provide prescription drug coverage in Medicare was held open for three hours to get a one-vote victory margin for President Bush; only 25 Republicans, including my former boss Todd Akin and now-Vice-President-elect Mike Pence, voted against it.

A three-hour vote to expand a program whose fiscal stability makes the Leaning Tower of Pisa look like the Rock of Gibraltar and whose existence is ungrounded in any plain reading of the Constitution itself: These are not the things of which conservative governance are made.

Additionally, America has been at de facto war in Afghanistan and Iraq for more than a decade but without benefit of a declaration of war, something required for U.S. military action by Article I, Section 8 of the Constitution. 

In fairness to former George W. Bush, in whose administration I served proudly and who I continue to regard as a fine man and consequential president, we did not declare war when we fought North Korea (and, in reality, its sponsor China), North Vietnam, or any other country we have engaged militarily since the conclusion of World War II.

Why all of this? Because the Constitution is a constraining document. Its text is clear enough that its meaning can be determined and applied. Were it not, we would have no Tenth Amendment giving states authority over everything the Constitution does not specifically delegate to the federal government, nor would we have a process for amending the Constitution within the text thereof itself. Why amend something you can just reinterpret per the preference of a majority of Supreme Court justices or the insistence of a Congress?

Holding true to the Constitution means that the Left cannot get much of what it wants, at least not quickly enough for its project of redefining the nature of our republic. This is why a liberal federal judiciary is its best hope for advancing “progressive” political goals. 

Our current President understands this. In appointments to the federal courts, Barack Obama has been exceptionally effective (one of the few true legacies of his sadly flaccid presidency). As of August of this year, Mr. Obama had appointed “329 judges to lifetime jobs, more than one third of the judiciary, and they’re already moving American jurisprudence in Obama’s direction,” notes Politico’s Michael Grunwald.

The Current Danger for Republicans

With this said, it is worth repeating that while Republican presidents generally appoint federal court judges who veer toward an originalist reading of the Constitution, and that the list of potential Supreme Court justices published by President-elect Trump during the campaign is excellent, the temptation to abuse executive authority will be acute for a get-things-done leader like Donald Trump.

And given Republican control of both House and Senate and the penchant of some Republicans simply to expand the federal government’s reach and power because, well, they are conservatives but not “extremists,” the temptation to feed the federal Leviathan will also be potent for them in the next few years. As Peter S. Wallison of the American Enterprise Institute gloomily but accurately contends, “Congress cannot be relied upon to uphold the constitutional structure. Indeed, the difficulties of the legislative process and the pressures of partisan loyalties essentially guarantee that the administrative state will continue to grow in the future.”

Yet Wallison’s solution is unduly optimistic. “With Congress unable or unwilling to prevent the growth and consolidation of administrative power,” he writes, “the judiciary is the only possible constitutional impediment to that continued growth. But for the courts to discharge their responsibility as protectors of the constitutional structure … the courts must force Congress to make the tough choices that are inherent in its constitutional role as a legislature.”

The GOP needs to pick its targets, focus on a few major priorities, and stick to them. Period.

I hope the courts do exactly this, but the probability of their doing this consistently or comprehensively is upsettingly unlikely. It assumes a deference to true constitutional governance the federal courts have too seldom evidenced.

The most powerful weapon in the conservative arsenal remains the ballot box. It is up to We the People, through mid-term congressional elections, to force the hands of those who have promised us more restrained and constitutionally faithful governance to keep their word. The threat of losing power is perhaps, at least in the short term, the only truly potent corrective left to us as we monitor the actions of our elected federal representatives.

I am a great fan of prudential governance; the administrative state and a liberal federal judiciary cannot be unbuilt in a day. However, this is no excuse for tepid inaction or fiddling with the edges of metastasizing federal monolith. The GOP needs to pick its targets, focus on a few major priorities, and stick to them. Period.

Republicans don’t have the ambitious agenda of the Progressive Left, but the levers of power are seductive. Conservatives must hold their self-proclaimed champions to account as a new Republican era begins in Washington.

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