Washington: hotbed of lawlessness
WASHINGTON — For all the gnashing of teeth over the lack of comity and civility in Washington, the real problem is not etiquette but the breakdown of constitutional norms.
Such as the one just spectacularly blown up in the Senate. To get three judges onto a coveted circuit court, frustrated Democrats abolished the filibuster for executive appointments and (nonSupreme Court) judicial nominations.
The problem is not the change itself. It’s fine that a president staffing his administration should need 51 votes rather than 60. Doing so for judicial appointments, which are for life, is a bit dicier. Nonetheless, for about 200 years the filibuster was nearly unknown in blocking judicial nominees. So we are really just returning to an earlier norm.
The violence to constitutional norms here consisted in how that change was executed. By brute force — a near party-line vote of 52-48. This was a disgraceful violation of more than two centuries of precedent.
What distinguishes an institution from a flash mob is that its rules endure. They can be changed, of course. But only by significant supermajorities. That’s why constitutional changes require two-thirds of both houses plus three-quarters of the states. If we could make constitutional changes by majority vote, there would be no Constitution.
As of today, the Senate effectively has no rules. Congratulations, Harry Reid. Finally, something you will be remembered for.
Barack Obama may be remembered for something similar. His violation of the proper limits of executive power has become breathtaking.
We’ve now reached a point where a flailing president, desperate to deflect the opprobrium heaped upon him for the false promise that you could keep your health plan if you wanted to, calls a hasty news conference urging insurers and the states to reinstate millions of such plans.
Except that he is asking them to break the law. His own law. Under Obamacare, no insurer may issue a policy after 2013 that does not meet the law’s minimum coverage requirements. These plans were canceled because they do not.
The law remains unchanged. The regulations governing that law remain unchanged. Nothing is changed except for a president proposing to unilaterally change his own law from the White House press room.
Remember how for months Democrats denounced Republicans for daring to vote to defund or postpone Obamacare? Saboteurs! Terrorists! How dare you alter “the law of the land.”
This was nonsense from the beginning. Every law is subject to revision and abolition if the people think it turned out to be a bad idea. Even constitutional amendments can be repealed — and have been (see Prohibition).
After indignant denunciation of Republicans for trying to amend “the law of the land” constitutionally (i.e. in Congress assembled), Democrats turn utterly silent when the president lawlessly tries to do so by executive fiat.
Nor is this the first time. The president wakes up one day and decides to unilaterally suspend the employer mandate, a naked invasion of Congress’ exclusive legislative prerogative enshrined in Article I. Not a word from the Democrats. Nor now regarding the blatant usurpation of trying to restore canceled policies that violate explicit Obamacare coverage requirements.
And worse. When Congress tried to make Obama’s “fix” legal — i.e., through legislation — he opposed it. He even said he would veto it. Imagine: vetoing the very bill that would legally enact his own illegal fix.
A Senate with no rules. A president without boundaries. One day, when a few bottled-up judicial nominees and a malfunctioning health care website are barely a memory, we will still be dealing with the toxic residue of this outbreak of authoritative lawlessness.