Imperial Presidency Redux
Words and phrases have meaning. While painfully obvious, we are right to reconsider the simple importance of this fact. The late Edwin Newman, noted grammarian and news correspondent, often warned of the devolution of the English language, especially in its Americanized form. His warning was meant to cover not merely the etymological, but also the political and cultural. A language that becomes too malleable, too informal to preserve definitions and distinctiveness can become a tool for cultural decay and political mischief. Such is the concern over Barack Obama's recent chastisement of the United States Supreme Court in the aftermath of oral arguments before the court regarding the constitutionality of the Patient Protection and Affordability Act (PPACA), popularized as "ObamaCare."
While I cannot attest to current levels of instruction in American government in public schools today, I can speak with some authority over what I learned as a high school student many years ago. We were taught that among the many features of our American form of government, one that was purposefully provided, even institutionalized, was a separation of powers. The first three articles of the Constitution of the United States provide a tripartite separation of duties and responsibilities designed for the ongoing conduct of the national government and as a bulwark against the concentration of power in one branch. In Article III, Section 2, the Constitution clearly states: "[I]n all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." With this sentence, we see that the Supreme Court is charged with consideration of matters of compliance to constitutional conformity of any law passed by Congress and executed by the president as needed. This is the heart of the concept of judicial review. In theory, a lifelong appointed slate of Supreme Court justices, shielded from the potential influence of electoral pressures, can and will determine if legislation does indeed bear constitutional scrutiny.
So, when former University of Chicago Law School lecturer Barack Obama issued veiled warnings against an unfavorable ruling on the PPACA, it came as a disappointment beyond just the political implication. Contrary to popularized recitations of Obama's past activities, he was not a professor of law, in the true academic sense. According to the university's own website, inquiries into Obama's faculty status were answered thusly:
The Law School has received many media requests about Barack Obama, especially about his status as "Senior Lecturer."
From 1992 until his election to the U.S. Senate in 2004, Barack Obama served as a professor in the Law School. He was a Lecturer from 1992 to 1996. He was a Senior Lecturer from 1996 to 2004, during which time he taught three courses per year. Senior Lecturers are considered to be members of the Law School faculty and are regarded as professors, although not full-time or tenure-track (emphasis added). The title of Senior Lecturer is distinct from the title of Lecturer, which signifies adjunct status. Like Obama, each of the Law School's Senior Lecturers has high-demand careers in politics or public service, which prevent full-time teaching. Several times during his 12 years as a professor in the Law School, Obama was invited to join the faculty in a full-time tenure-track position, but he declined.
While noteworthy, the distinction is not that important in this context. Apologists will cite Obama's brief guest lecturer stint as his qualification to be a "constitutional scholar," even though there is no paper trail of scholarly books or even published treatises by him in evidence of that assertion. What is important is the lack of understanding of constitutional principles that a full professor, or a lecturer like Obama, demonstrates. As a one-time lecturer at a prestigious law school, the president should have a far better grasp on basics that are understood by high school students. His pronouncements at Monday's White House lawn ceremony confirm either an abject ignorance of the law he supposedly was qualified to teach -- and now uphold as chief executive -- or they were part and parcel of a long-demonstrated dismissive attitude toward constitutional limits on government. Flanked by visiting heads of governments Felipe Calderón of Mexico and Stephen Harper of Canada, Mr. Obama said:
I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress[.] ... And I'd just remind conservative commentators that for years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this court will recognize that and not take that step.
Mr. Obama, therefore, offers us two alternatives regarding his grasp on his role and role of other branches of government. Neither choice presents anything remotely palatable to American citizens who pay attention. There are other problems with Obama's attitude regarding the potential overruling of his supra-constitutional health care mandate, besides his muddling the concepts of "judicial review" versus "judicial activism." He seems to eschew the idea that "an unelected group of people" (i.e., the Supreme Court) should have a say in matters related to his legislative projects. This is an interesting attitude, as he has surrounded himself with a platoon of appointed "czars," people who have not had to endure any oversight or confirmation scrutiny, and has placed them in virtually unfettered positions of policy decision-making. It had been my seemingly simplistic understanding throughout the years that executive policy emanated from cabinet-level departments. These departments, in turn, were headed by presidentially appointed officials who faced the glare of congressional vetting. Obama has chosen to eliminate this process in large part with an insular cabal of unaccountable policy wonks who are free to operate outside the sunshine of scrutiny. So, while Mr. Obama has a problem with a constitutionally mandated -- and vetted -- appointed Supreme Court, he has no problem with unelected and unconfirmed apparatchiks who formulate policy that affects every single citizen in this nation. Then again, intellectual honesty is never the strong suit of the statist.
Operating in a manner inconsistent with time-honored constitutional principles is a hallmark of this presidency. What cannot be achieved legislatively, the current White House occupant will enforce through executive order. His attitude toward the Supreme Court bears no difference from that which the Democratic Party ascribed to President Richard Nixon some thirty-nine years ago. They referred to him as the "Imperial President," as coined by noted historian Arthur Schlesinger, Jr., for Nixon's perceived growth of the power of the presidency. It is arguable that this president is showing a far greater propensity toward the acquisition of political power than Nixon himself ever did.
Words have meaning, Mr. Obama. It would be conducive to good government to learn them for their true meaning -- and to not use them for demagogic purposes.