a controversial landfill deal. As Obama earned greater prominence through his organizing activities, especially in the field of registering thousands of ne’er-do-wells to vote, he was invited to sit on the boards of left-leaning foundations, enabling him to steer funding to notorious direct-action practitioners. One of his close allies in that endeavor was the avowed “small-c communist” William Ayers. The former Weather Underground terrorist knew a thing or two about direct action.
In the short run, the goal of direct action is sheer extortion: to coerce capitulation in the controversy of the moment, be it over a private business’s right to compensate employees or build production plants as it sees fit, a state’s sovereign power to defend itself by enforcing immigration laws, or Leviathan’s grab (under the cloak of regulation rather than outright seizure) of one-sixth of the U.S. economy in the name of “health-care reform.” Over the long haul, the goal is to demoralize civil society, to convince opponents that regular processes—particularly, reliance on the law—will be unavailing. This is the distinctive slice of Chicago that Obama has brought to the White House. Administration officials monotonously invoke the “rule of law” even as they use law as a cudgel, run circles around it, and ride roughshod over it.
The power to enforce the law, which carries with it the equally salient power not to enforce the law, is a president’s most imposing domestic weapon, rivaled in importance only by the awesome authority inherent in a president’s status as commander in chief of the U.S. Armed Forces. After a Supreme Court ruling that angered him, President Andrew Jackson is said to have scoffed, “John Marshall has made his decision. Now let him enforce it.” Though the story may be apocryphal, the lesson it conveys is only too real. Congress writes laws and courts assess the laws’ validity, but neither has the power to breathe life into the law. Absent executive action, the exertions of the other branches are dead letters.
In various justice systems, particularly in Europe, prosecutors share powers with judges, and, at least theoretically, are duty-bound to charge crimes whenever there is sufficient evidence. Not so in the United States, where prosecutorial discretion is the rule of the road. Through public hearings and withering opinions, Congress and the courts can try to pressure the executive into enforcing particular laws, investigating potential violations, or staying his hand. But they cannot compel a president to act or refrain from acting. They cannot force a president to abide by his constitutional obligation to execute the laws faithfully. They have no means of taking enforcement action on their own. The judiciary’s capacity to halt capricious executive action is entirely dependent on the administration’s willingness to honor judicial directives. Congressional oversight requires an administration’s cooperation. A president of dictatorial persuasion who coopts the media in his disregard for the system’s checks and balances is nigh impossible to contain.
Nor is there reciprocity any longer in our separation of powers. While the executive now legislates and rules, the other branches cannot enforce their own statutes and decisions. The imperial presidency has become the administrative state, the legacy of progressive fondness for a metastasizing government whose purportedly expert, apolitical bureaucracies supplant popular sovereignty. The Wilsonian vision was installed through the ceaseless exigencies of Roosevelt’s twelve-year reign; and long before Rahm Emanuel came along, FDR knew that a crisis was a terrible thing to waste.
Today, well beyond the New Deal and the Great Society, the administrative state is socializing health care, micromanaging industry, dictating education standards, taking over automotive and insurance giants, underwriting mortgages and student loans, borrowing trillions of dollars from itself (i.e., printing trillions of dollars for itself), and even mandating coverage for contraceptives and abortifacients. The president oversees a vast expanse of executive agencies, and exercises enormous influence over ostensibly independent commissions, to which Congress delegates seemingly limitless legislative authority in the form of regulation-writing power. Much of the resulting tens of thousands of pages is insulated from judicial review. Presidents issue executive orders to shape Leviathan’s priorities and procedures. The lines blur, and it becomes increasingly difficult to stop a president hell-bent on imposing his political aims as if they were legal duties.
Congress is endowed by the Constitution with the power to impeach a president for serious violations of law (“high crimes and misdemeanors”). Impeachment is a grave remedy on the order of a nuclear strike. It has been sparingly invoked against presidents—only three times in our nation’s history. Andrew Johnson and Bill Clinton were impeached by the House but acquitted in Senate trials; Richard Nixon resigned to avoid sure impeachment and removal. As we shall see, impeachment is a political remedy: even if palpably guilty of profound transgressions, a president will not be ousted without a groundswell of public ire. It has thus been thought impractical as a response to all but the most egregious abuses of executive power, involving attacks on the constitutional foundation of our liberty.
It is the burden of this book to persuade readers that President Obama and his administration are engaged in just such a campaign. That said, impeachment is not a plausible response unless the American people become convinced not only that the campaign is real but also that a governing system they wish to preserve is mortally threatened by it. Are we still a self-determining people resistant to the freedom-devouring proclivities of an imperial presidency? That is much harder to answer than the question whether “high crimes and misdemeanors” have been committed.
If a president is the type of man who couples his hope with audacity, if he is willing to play Alinsky-style hardball despite his oath to uphold the Constitution and faithfully execute the law, there is little that can stand in his way—not if Congress is unwilling to use its competing constitutional powers. Law becomes a dispositive weapon in the service of the president’s ideological crusade, never a brake against the crusade’s advance. In the Obama administration, “rule of law” talking points are just rhetorical camouflage. True law is the moral and ethical consensus of a civil society, reflecting the conscience of a free and virtuous people; but to Alinsky, “conscience is the virtue of observers and not of agents of action.” For his disciples, the agent of action must be the Ruler of Law—its master, not its servant.
American constitutional republicanism has been strong enough to survive over two centuries of self-governance, civil war, world war, terrorism, social upheaval, and periodic economic calamity. But can it survive a Ruler of Law and his trusty pitchforks? The Constitution says we need not be put to that test. The Framers gave Congress checks to combat executive lawlessness. The ultimate one is impeachment. There is a rich legal case for using it. But impeachment is not about what the law allows. Impeachment is a matter of political will.1
“It’s a good question.”
Ted Cruz was answering a query from a woman in the audience for a dinner speech. His topic was lawlessness in the Obama administration. This being Montgomery County, Texas, rather than the Beltway or the Upper West Side, the subject was deemed fit for respectable discussion. The woman’s question specifically concerned the president of the United States, and it was succinct:
“Why don’t we impeach him?”
Senator Cruz was right: It is a good question.
Impeachment, after all, is not a high mountain to climb. The Constitution vests in the House of Representatives “the sole power of impeachment.”1 Currently, the House is controlled by President Obama’s opposition: Republicans
