David E. Bernstein - Lawless: The Obama Administrations Unprecedented Assault on the Constitution and the Rule of Law

2015 by David E. Bernstein

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FIRST AMERICAN EDITION

LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

Bernstein, David E., author.

Lawless: the Obama administrations unprecedented assault on the Constitution and the rule of law / David E. Bernstein.

pages cm

Includes bibliographical references and index.

ISBN 978-1-59403-834-1 (ebook)

1. Constitutional historyUnited States21st century. 2. Rule of lawUnited States. 3. Executive powerUnited States. 4. United StatesPolitics and government2009 5. Obama, Barack. I. Title.

KF4541.B447 2015

342.7302'9dc23

2015017132

PRODUCED BY WILSTED & TAYLOR PUBLISHING SERVICES

Copy editor Jennifer Brown

Design and composition Nancy Koerner

Indexer Derek Gottlieb

Table of Contents

CONTENTS

Senator Ted Cruz

Senator Ted Cruz

When Barack Obama first ran for president, many of his supporters, including much of the media, portrayed him as a near-messianic figure who had the potential to heal old wounds, purify our politics, and bring together a divided nation. Columnist Ezra Klein, for example, wrote (in a not-so-subtle Christological allusion) that Obama was not the Word made flesh, but the triumph of word over flesh, over color, over despair.

Rather than temper the absurdly high expectations others were setting for him, Obama often doubled down by promising to usher in a higher form of politicsa statesmanship that would transcend our petty ideological divisions and cynical partisanship. While announcing his candidacy, for instance, Obama explained that he was not in the race just to hold an office, but to gather with you to transform a nation and to usher in a new birth of freedom on this Earth.

Looking back on these extravagant claims, one cannot escape the sense that a fraud has been perpetrated on the American people. President Obama has transformed Americabut not in the way he advertised. With the enactment of Obamacare, he transformed the nations healthcare system (for the worse). With the passage of Dodd-Frank, he transformed the nations financial regulatory regime (for the worse). And by appeasing Cuba and Iranthe latter openly calling for Death to America and Death to Israelhe transformed the nations foreign policy (for the worse). But in the midst of these transformations, it became abundantly clear that Obama never had any intention of transcending ideology, bridging the partisan divide, and elevating our discourse. In many ways, he has made our politics even more corrosive. Instead of fundamentally chang[ing] how Washington works, the president has been all too willing to engage in outright deceit, rank partisanship, cronyism, and procedural gimmickry to enact his agenda.

Obamacare is the perfect example. Theres no question that Obamacare was built on outright deceit. As the bill worked its way through the legislative process, the president traveled the country trying to sell it to the American people. Most infamously, he promised over and over again, If you like your health care plan, you can keep it. Hardly the product of a new politics that Obama had promised, the presidents signature legislative achievement stands instead as a testament to all that is rotten about Washington.

Time and again, under the banner of high-sounding ideals, President Obama acts in a way completely counter to those ideals. Not only do his actions fail to match his words, but they often track in the opposite direction. This Orwellian habit is starkly displayed in the Obama administrations approach to governmental openness and transparency. Shortly after assuming the presidency, President Obama issued a memo committing his administration to creating an unprecedented level of openness in government. Needless to say, such a maneuver is not in the spirit of FOIA, nor is it remotely in line with Obamas verbal paeans to transparency.

Sadly, this is just the tip of the iceberg. Abusive and covert behavior has proven to be the rule, rather than the exception, in this administration. But dont take it from me. Listen to some of the presidents most lavish supportersthe media. According to the San Francisco Chronicle, the president had a decidedly fraught relationship with media scrutiny from the beginning of his first term. It would only go downhill from there. By the end of four years, one Atlantic writer had seen enough:

Obamas first term has in fact been rife with just the sort of opacity that breeds corruption, obscures misdeeds, and undermines public trust in government. Far from being praiseworthy, the prevailing executive-branch attitude toward secrecy is an abomination, as is evident from even a cursory look at its real-world manifestations.... Contrary to its claims, the Obama Administration just may be the least transparent in American history.

The situation did not improve after the presidents reelection. Over halfway through Obamas second term, a Washington Post blog documented how this administration has (1) fought court battles to avoid disclosing White House visitors; (2) simply ignor[ed] the federal open meetings law; (3) withheld secret legal memos, including one saying the CIA could kill US citizens affiliated with terrorists; (4) aggressively utilized the state secrets privilege; and (5) uncompromisingly attacked whistleblowers and prosecuted more leakers under the Espionage Act than all other administrations combined. So much for President Obamas promise of unprecedented openness and transparency.

So what does any of this have to do with Professor David Bernsteins excellent book? Well, as bad as the foregoing bait and switches are, they pale in comparison to the Obama administrations lawlessness. Rather than remain within constitutional boundaries, President Obama has defiantly flouted them. More so than any other administration in our countrys history, his has trampled roughshod over our defining ideal, the rule of law. And he has done so in exactly the same way as was done in the previous examples: essentially promising the moon, only to confiscate the citizenrys moon pies. On his first day in office, Obama assured the public that the rule of law would be a touchstone[ ] of this presidency. But this promise has proven every bit as illusory as the other promises he has made.

President Obama rarely lets the law stand in the way of his designsalmost always putting ideology above fidelity to the law. As a consequence, the list of his usurpations runs long.