By Any Means Necessary?

A man I have known for a long time and both like and respect recently posted the following comment on LinkedIn:

“The President’s move on Dreamers is wrong. Very wrong.”

I am not in the habit of publicly dissenting from LinkedIn comments, but I couldn’t restrain myself from leaving the following response:

“Disagree. A President doesn’t get to unilaterally change laws as President Obama did in this instance, which is why DACA is an unconstitutional infringement on legislative powers; Congress must act to grant relief from current law if relief is to be granted. Process matters.” 

His comment got a lot more ‘likes’ than mine did.

***

Fewer and fewer people – even highly accomplished ones like the man whose comment I was responding to above – have much reverence, or even respect, for the rulemaking processes laid out in the Constitution. Perhaps they don’t realize that those processes are there to protect our fundamental rights.

President Obama himself had repeatedly stated publicly that he didn’t have the power to unilaterally grant de facto amnesty to those who had come to this country in contravention of our laws; then in the midst of the 2012 election cycle he implemented DACA anyway. He was undoubtedly right in his original assessment of the limitations on presidential powers – as indicated by the stay of the DACA order subsequently issued by a federal court and left in place by the Supreme Court – but nevertheless managed to accomplish a change in policy that most Americans favor.

***

Another, even more important, example of a change in policy that is popular in retrospect but was affected in a manner that began in rank dishonesty and was implemented through Constitutional sleights of hand is insurance coverage for pre-existing conditions under the Affordable Care Act. From Professor Gruber’s admitted deceptions about the program’s costs to President Obama’s oft-repeated claim that “If you like your coverage you can keep your coverage” the program was sold to Congress and the public in a wholly deceptive manner. And it cannot be plausibly denied that those deceptions were vital, given the law’s passage by a margin of one vote.

The Supreme Court then ratified the new law in two improper ways: Justice Roberts creatively declared that its penalty provision (which was not a tax, as was repeatedly asserted by the President and leading Democrats in Congress during arguments leading to the law’s passage) was in fact a tax, thus finding a way to legitimize the law’s Constitutionality. Then, when the Administration asserted that it had the right to reimburse insurance companies for their losses under the program without allocations of funds from Congress, the Supreme Court went along with that as well, notwithstanding the Constitution’s clear directive that all spending must be authorized by bills emanating from the House of Representatives.

The most remarkable thing about the deceptions and sleights of hand that were employed by the Obama Administration and the Supreme Court to implement the ACA is that they were wildly successful from a political standpoint. The Obama Administration got what it wanted – a new entitlement (to coverage for pre-existing conditions) that effectively means that the federal government will henceforth control insurance policies and therefore the great majority of healthcare decisions throughout the country. Once the new law had been implemented, and the public had become accustomed to the idea that ‘insurance’ should cover a risk event (getting sick) that has already happened, it was always going to be next to impossible to take away that ‘right’. President Trump and leading Republicans have already made it clear that they’re not even going to try to take away the new entitlement – at most, they’ll fiddle with a few of the ACA’s details, leaving its beating heart intact.

So, in a sense, former president Obama must think back on the process that he used to get what he wanted with fondness: it worked. His actions showed that he understood that because entitlements create their own ferocious constituencies, they are pretty much un-repealable.

***

There are lots of other recent examples of legal and Constitutional niceties being ignored in favor of policies deemed beneficial by the party in power. For one, under the Obama Administration, the EPA aggressively reinterpreted the Clean Air Act to vastly augment its power, with little textual or legislative history to support its position. For another, ever since Roe v Wade, the Supreme Court has taken to ‘discovering’ new rights in the Constitution, only the most recent of which is the right of gays to marry. None of these newly ‘discovered’ rights have much basis in the Constitution’s text or in our history; they reflect the opinions of a majority of nine justices. Old fashioned Constitutional Amendments are too bothersome when five of the nine justices-for-life want to assert themselves, I suppose.

***

I certainly understand that every one of the policy changes described above has a lot of political support; the point of this post is not to argue the merits of whether those policies are wise or unwise; it is to focus on the way in which they were put in place.

***

There is a left wing group called By Any Means Necessary that pushes its agenda in the manner stipulated by its name, up to and including violence. In a culture that prizes both the rule of law and individual rights, its very name would repel. It is clear to me, though, that many of our leaders have implicitly accepted the-ends-justify-the-means morality of which By Any Means Necessary is an entirely logical extension.

Much of the public, too, doesn’t seem to care if the President or the Supreme Court stretch their powers beyond recognition as long as they are used to create ‘rights’ that later prove popular.

We lose more than we know, though, when we allow the Constitution and the rule of law to wither, coming to mean whatever those in power say they mean. Those who believe that the ends justify the means don’t understand that the means themselves embody our fundamental rights and the rule of law, or lack thereof.

 

M.H. Johnston

4 comments to By Any Means Necessary?

  • Anonymous  says:

    Thanks, this is cogent commentary. I am afraid only a distinct minority cares very much about the Constitution and the rule of law at this point.

  • Dennis Paine  says:

    Mark,

    I agree with Anonymous, above, and only wish your closing paragraph had been stated more strongly.

    We are at the edge of a precipice, and I fear for the future of this great nation.

    • M Johnston  says:

      My sense is that it’s more of a slippery slope – but neither is a good place to be.

  • John Primm  says:

    Powerful commentary Mark–very necessary in this day and age.Keep them coming and never give up. Your message does get out there.

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