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What Ever Happened to the Rule of Law?

How situational constitutionalism ruins our politics.
Rancher Cliven Bundy gestures at his home in Bunkerville
Rancher Cliven Bundy gestures at his home in Bunkerville, Nevada April 12, 2014. U.S. officials ended a stand-off with hundreds of armed protesters in the Nevada desert on Saturday, calling off the government's roundup of cattle it said were illegally grazing on federal land and giving about 300 animals back to rancher Bundy who owned them. REUTERS/Jim Urquhart (UNITED STATES - Tags: POLITICS ANIMALS BUSINESS CRIME LAW CIVIL UNREST) (Newscom TagID: rtrlsix400412.jpg) [Photo via Newscom]

President Obama signed Ted Cruz’s bill barring visas for ambassadors suspected of terror ties—aimed squarely at Iran—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.”

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, fretting 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 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” 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 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, “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?