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What Ever Happened to the Rule of Law?

President Obama signed Ted Cruz’s bill barring visas for ambassadors suspected of terror ties—aimed squarely at Iran [1]—into law Friday. He then made clear he will not enforce it.

In a signing statement, Obama said he would treat the new law as “advisory in circumstances in which it would interfere with the exercise” of his constitutional discretion to receive or reject ambassadors.

Candidate Obama was critical of George W. Bush’s presidential signing statements. “[W]hat George Bush has been trying to do, as part of his effort to accumulate more power in the presidency,” Obama said during a 2008 campaign appearance, “he’s been saying I can basically change what Congress passed by attaching a letter saying I don’t agree with this part or I don’t agree with that part, I’m going to choose to interpret it this way or that way.”

“That’s not part of his power, but this is part of the whole theory of George Bush that he can make laws as he goes along,” Obama added. “I disagree with that. I taught the Constitution for 10 years. I believe in the Constitution and I will obey the Constitution of the United States. We’re not going to use signing statements as a way of doing an end-run around Congress.”

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Republicans have been critical of Obama’s assertions of executive power, ranging from his unilateral delays of key Obamacare provisions to his contested use of recess appointments. On issues like immigration and the Justice Department going to bat for the Defense of Marriage Act, they have argued that the president should be following the rule of law.

Yet few of these Republicans were similarly fastidious about executive power during GOP administrations. Thus we are treated to the spectacle of former Bush legal adviser John Yoo, who memorably performed some verbal gymnastics about whether the president has the power to order a child’s testicles crushed [2], fretting [3] about Obama’s “serious violation of the separation of powers” over a National Labor Relations Board recess appointment.

Some of the same people who remind Americans that this is a nation of laws when the subject is illegal immigration applaud [4] Nevada rancher Cliven Bundy in his standoff with the federal Bureau of Land Management. Others, perhaps in a somewhat more tongue-in-cheek fashion, urge young people to burn their Obamacare cards and defy the individual mandate to purchase health insurance.

From high school civics to national political debates, we repeat the phrase “government of laws, not men.” Is this still true or have we in fact become a government of men and women rather than laws?

Many exercises in situational constitutionalism can be explained by partisanship or political opportunism. In this writer’s opinion, Yoo is wrong on testicles and right about the Senate’s power to determine when it is in recess. Sometimes the rule of law is more complicated, however.

President Obama is right that Article II, Section 3 of the Constitution gives him the power to “receive Ambassadors and other public Ministers.” Candidate Obama was right that Article I, Section 7 gives the president only two options in dealing with bills passed by Congress: “sign it” or “return it.”

Moreover, a country is a nation of laws not simply because the people comply with the dictates of the government. The rule of law depends on the government obeying the law—including the Constitution. Simply allowing government to decide for itself what the law is isn’t likely to keep government power limited.

If checks and balances, federalism, and the Supreme Court all fail, doesn’t that mean the people must have some recourse? Thus the veneration of “Dreamers [5]” by some and Bundy’s grazing fees rebellion by others. They invariably point out that the republic was born of revolution.

The columnist George Will irritated many Ron Paul supporters when he wrote [6]that Paul “believes, with more stubbornness than evidence, that the federal government is a government of strictly enumerated powers.” Will continued, “Even before the Founders’ generation passed from the scene, the government was slipping off the leash that Madison said and Paul says the Constitution puts on it.”

If meant as an objective observation about the growth of government and not a value judgment in favor of virtually unlimited federal power, is Will really that far off? As another more constitutionally-minded columnist once put it [7], “The U.S. Constitution poses no serious threat to our form of government.”

W. James Antle III is editor of the Daily Caller News Foundation and author of Devouring Freedom: Can Big Government Ever Be Stopped? [8]

Follow @jimantle [9]

21 Comments (Open | Close)

21 Comments To "What Ever Happened to the Rule of Law?"

#1 Comment By HeartRight On April 21, 2014 @ 5:56 am

The Rule of Law? Inevitably, it became a play-thing for lawyers.

Any other paradigma you may wish to devise will inevitably suffer from an analogous defect.

#2 Comment By Fran Macadam On April 21, 2014 @ 6:44 am

“John Yoo, who memorably performed some verbal gymnastics about whether the president has the power to order a child’s testicles crushed…”

Yoo’s a prevaricator who could visit North Korea and not only not have to fear arrest, but is the sort of enabler who’d be found useful to join Kim’s retinue.

#3 Comment By MWorrell On April 21, 2014 @ 10:33 am

You’ll never stand up for anything if your primary aim is to obey the law and stay out of jail. Sorry, but history is our instructor on that point.

#4 Comment By David Naas On April 21, 2014 @ 10:54 am

Thanks for standing up for a concept many believe to be antiquated.
Unfortunately, some time ago, whether in the administration of Jefferson, Lincoln, or Bush II (pick the villain according to your prejudices) the rule of Law has been abandoned in favor of fuhrerprinzip — the Will of the Leader is above all written Law.
Our only current debate is, “Which Fuhrer” will we serve?

#5 Comment By SteveM On April 21, 2014 @ 11:16 am

Re: “situational constitutionalism”

The issue is not just the selective elasticity of the Constitution and application of the laws by Elites. The 800 pound para-militarized gorilla in the room is how the Domestic Security State is currently enforcing them.

Regardless of Cliven Bundy’s bravado, the BLM sent in a SWAT team to resolve what is essentially an administrative dispute. And SWAT teams have shown themselves to be capable of being totally undisciplined in the application of deadly force. Gun muscle reflexes from Fed Goons could easily turn the Bundy situation into a catastrophe, like the one that got that poor frazzled woman slaughtered in her car by Fed Cops in DC.

Moreover, DHS has procured 1.6 Billion rounds of ammunition and scores of armored vehicles:

[10]

Enough for a 20 year Iraq war. Almost every federal agency has a SWAT team for regulatory enforcement, YouTube is replete with videos of police abusing the civil liberties of criminals and innocents alike. And those are just the cases that were fortuitously captured on video. Law enforcement is suffused with sociopaths harboring a shoot first Goon Squad mentality, TSA is an extra-constitutional quagmire.

And the Power Elites, including Obama are totally indifferent to the devolution.

P.S. It is not militias, but the cell phone camera that is the primary defense against the Domestic Security State.

#6 Comment By mrscracker On April 21, 2014 @ 11:42 am

The BLM were acting way over the line, but Mr. Bundy needs to follow the law. It’s not his private property.

#7 Comment By Joe the Plutocrat On April 21, 2014 @ 12:16 pm

laws exist to protect property/wealth – period. all this silliness about “rights” as defined by laws is a ruse. if, as the founding fathers “declared” we all have “certain inalienable Rights” endowed by a Creator, why do we need a Constitution (laws)? see above. the founders (and the subsequent plutocrats who have run the show since day 1) wanted to protect their wealth and in exchange the rest of us bought their pitch that the “most valuable” thing of all is freedom. so, we the People got “freedom” and the elites, plutocrats, or whatever you want to call them, got the rest. they also got to own the government. again, we are told that we have “choice” and every 4 years we have the “right” to exercise this choice, but if the elites/plutocrats own both the red and the blue, what is the value of this choice or this right (to vote)? the government can (and does) deny rights all the time – see: internment of Japanese-Americans during WWII. see: confiscation and sale of assets related to (alleged) drug busts, etc. don’t have all the facts related to the Bundy/BLM dust-up, but in the end I suspect Ralph Nader’s “when you choose the lesser of two evils, you’re still choosing EVIL…” comes to mind. unfortunately for Bundy and the “militia” types, if/when push comes to shove, “power” will do what it believes serves ITS interests, the Constitution be damned. this is neither fair, nor unfair. it’s just the way things IS.

#8 Comment By Joe the Plutocrat On April 21, 2014 @ 12:17 pm

excuse me, see: Patriot Act

#9 Comment By JohnG On April 21, 2014 @ 2:23 pm

“Simply allowing government to decide for itself what the law is isn’t likely to keep government power limited.”

Thank you for raising this issue! What strikes me here is how the solution seems so easy and difficult at the same time. The easy and obvious answer is of course checks and balances in deciding what the law is. However, just how do we get to a presidency that would agree to such sharing of power? Put differently, what is the likelihood that Rand Paul becomes the republican nominee and then wins? And if that fails, what is the likelihood that a Libertarian becomes next president? Bets, anyone? I’d say 1 in 10.

#10 Comment By Dan Phillips On April 21, 2014 @ 4:23 pm

“The columnist George Will irritated many Ron Paul supporters when he wrote that Paul “believes, with more stubbornness than evidence, that the federal government is a government of strictly enumerated powers.” Will continued, “Even before the Founders’ generation passed from the scene, the government was slipping off the leash that Madison said and Paul says the Constitution puts on it.”

If meant as an objective observation about the growth of government and not a value judgment in favor of virtually unlimited federal power, is Will really that far off?”

The problem with Will’s column/comment was, as I pointed out at the time at another venue, is that he was essentially patting Paul on the head and saying “bless your heart.” It wasn’t so much a value judgement in favor of unlimited government as it was a value judgement against pointing this out. Will’s observation is correct in fact, but it is correct partially because people like Will (and many before) haven’t been objecting to this situation from the roof tops. There are two ways then to respond to people like Paul who point out obvious truths. You can pat them on the head like Will did, or you can chear them on. (I guess a third option is that you can disparage them, which is what a lot of Paul’s opponents did.)

#11 Comment By Federal Farmer On April 21, 2014 @ 5:25 pm

YES LAW. As in the 1864 NV State Enabling. Western States are not “Equal Footing” with other States.

Read a Book.

#12 Comment By JonF On April 21, 2014 @ 5:52 pm

Re: However, just how do we get to a presidency that would agree to such sharing of power?

We also need a Congress that is willing to assume power and responsibility, which means making hard decisions and compromising across the aisle to resolve serious national problems– Not just unending rhetoric and grandstanding for the purpose of gaining reelection.

#13 Comment By Puller58 On April 22, 2014 @ 4:00 am

Bundy is a nut. Try remembering that rather than sugarcoating him for consumption by Tea Party deluded people.

#14 Comment By John On April 22, 2014 @ 10:09 am

I am really tired of hearing how Madison would be aghast at a federal government acting within the powers given it by the Constitution he took the lead in writing.

Madison and his friends intentionally built an incredibly powerful federal government to overawe the state houses who were busy passing debt and tax relief at the expense of rich people (like the delegates in Philadelphia). If he thought that the states would have passed it, he would have included language allowing for a federal veto of any state law, regulation or court decision. He and the other delegates in Philadelphia settled ultimately on the Constitution being made the supreme law of the land and forbidding states to do several things (chief among them “Law(s) impairing the Obligation of Contracts,” since after all this convention was nothing if not a gathering of creditors and bondholders).

If there is anything true about the Constitution, it is that the plain meaning of its words only takes you so far when you are dealing with conflicts of policy between the two elected branches of government. If Obama were to follow Jackson’s lead, he should have exercised his veto to end Cruz’s bill on the grounds that it intruded upon the presidency’s constitutional prerogatives. Instead, he chose to favor Mr. Cruz with signing it into law, while making clear that he retained authority to disregard it in accordance with the Constitution. There are no courts for these kinds of disputes but public opinion, the polling station and eventually history.

#15 Comment By Oglethorp On April 22, 2014 @ 10:31 pm

I agree with the fact that situational law creates chaos. The problem is too many laws and too many cooks in the kitchen. There are natural laws that suit society’s survival. All the codes, ordinances and regulations make it impossible for most people to go a week with out breaking the law. That sucks. So the fact that so many laws exist are the problem. This book I am reading American Séance on Amazon. Makes complete since on this stuff. Here is the link, check it out: [11]

#16 Comment By Clint On April 23, 2014 @ 1:06 pm

James Madison,
“The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation , and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.”

#17 Comment By cdugga On April 24, 2014 @ 2:45 pm

Basically the law is the subject of the end of a gun, and the gun is often held by criminals or those living in fear and claiming to be patriots. It might be a sad day for America when criminals claim a patriotic right to point assault rifles at their fellow citizens, but it is more than infuriating to see politicos supporting armed criminals breaking the law under the cover of AR’s and the flag. Welcome to the new gun waving GOP. Same as the old? Hopefully conservatives and patriots can distance themselves from those claiming conservative values who are constantly bemoaning the coming end of the republic by a gay conspiracy, or from well propertied thieves waving flags and pointing guns at government authorities while laying claim to republic territory. Well, maybe they will if the patriotic terrorists start talking too much and out loud about taking the country back from the negro. Not until then though?
My daughter worked for the BLM to help pay back her student loans. She wanted to continue working for them and pursued law enforcement training where someone broke her arm and she had to make a career move. The jobs she was gunning for were likely to be taken by returning soldiers anyway. That’s the way that cookie crumbles. But ranchers pointing their guns at her because they say they have the right to take public lands, or at least their resources without paying for them? How’s that for a with us or against us moment? Law by AR? Anybody here believe in giving the guy with the AR another chance to point it at their fellow citizens? Yeah, I thought so. Not to worry until they point it at you or yours. Kinda like not asking what we are fighting for until your son or daughter comes home on a secret flight full of coffins. Oh, and the president should not pursue negotiations with Iran because Ted Cruz knows better.

#18 Comment By Maire On April 24, 2014 @ 6:31 pm

In a constitutional republic, appeal to the “rule of law” only works to the extent that “the people” see themselves, in fact, as a single polity. I believe it was Benedict Anderson who said that a constitution presupposes that a political community already exists. If the community doesn’t exist or has ceased to exist, eventually the rule of law will break down. That is what the American Revolution was about after all. The Cliven Bundys of America don’t perceive themselves as really part of the same political community as the latte-drinking crowd. This goes a long way towards explaining why these kind of standoffs are occurring. Now you may say that the Feds aren’t King George and Cliven Bundy isn’t a Minuteman. However, as most commentators agree and those on the Left are usually the first to point out, this is increasingly a country of corporate money and special interests. The notion that this country is “bought and paid for” is not just a George Carlin routine; it has been part of the received wisdom for decades. To ask how the average guy on the street matters is not the speculation of fringe cynics but sadly mainstream. We don’t have to be living under a bona fide tyrant to wonder how far “the people” can be stretched before the country falls apart.

#19 Comment By HeartRight On April 25, 2014 @ 6:09 pm

‘James Madison,
“The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation , and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.”’

Forgive me a question out of foreign ignorance – no sarcasm, I have been wondering about it for at least a decade.

I do not understand how Rights retained by the People become Rights retained by the component States, People and [component] States not being equivalent terms.

#20 Comment By Joe A On April 27, 2014 @ 8:30 am

Laws, like the Bible, are subject to interpretation. Hence the recent Supreme Court ruling that “corporations are people, my friend.”

Bundy says he does not recognize the United States government. Now, if someone like Rev Jeremiah Wright said that, how much enthusiastic support from libertarians and right-wingers would HE get???

#21 Comment By Barry On April 28, 2014 @ 11:03 am

“Regardless of Cliven Bundy’s bravado, the BLM sent in a SWAT team to resolve what is essentially an administrative dispute.”

Simply not true. Bundy had been defaulting on fees for 20 years, and had lost numerous court cases. He and his wife were saying that they were armed, and intended to use those weapons. At that point, calling in a SWAT team is a good idea.