Published September 26, 2016
This election cycle has left many Americans worried about the state of our republic. Vast swathes of the citizenry are clearly frustrated, dissatisfied, and increasingly alienated from the political system. The major parties’ primary processes have yielded a nightmare of a general election, featuring two exceedingly unpopular candidates, each of whom exhibits some mind-boggling character problems.
For some observers, the concern runs even deeper. They worry that if one of these candidates is elected, our constitutional system will be endangered and an effectively autocratic presidency will become a real possibility in America.
This kind of concern has been raised almost exclusively with regard to the prospect of a Trump presidency. Many liberals, and even some non-liberals, have suggested that Donald Trump is a threat to democratic, constitutional government in America — what the Founders and Lincoln called “republicanism.”
They have a point. Trump inclines to autocratic rhetoric about how only he can solve the country’s problems. He clearly admires foreign strongmen. He is also erratic and unpredictable and tends to disrespect the arduous process of democratic decision-making and the restraints it involves. He argues that American politics and government in our time are in a state of such utter dysfunction that they should be blown apart. These certainly do not sound like the views of a person with a deep esteem for the constitutionally limited role of the president or for the delicate balance of our system of government.
But the observers who raise these concerns tend to perceive such dangers only with regard to Trump, whom they consider a singular menace. Hillary Clinton, they say, is by contrast a run-of-the-mill liberal politician. As the libertarian writer and humorist P. J. O’Rourke put it this spring in endorsing Clinton, she may be “wrong about absolutely everything, but she’s wrong within normal parameters.”
It’s true that Hillary Clinton is a mainstream contemporary liberal, albeit a disturbingly unethical one. She stands out for decades of brazen and unscrupulous dishonesty wielded to advance her and her husband’s political and financial interests — for curiously lucrative investments explainable only by files that have conveniently gone missing, for vicious character assassination against victims of Bill Clinton’s misogynistic abuses of power, for recklessness with national secrets in the service of protecting personal secrets. These would be alarming traits in a president. But the constitutional order could likely withstand, as it has withstood in the past, presidents with similar traits.
Instead, it is precisely in the way in which Clinton seems normal that she poses a serious danger to American democracy. The mainstream contemporary liberalism she represents so well is itself a threat to constitutional government in America. And it is a more concrete and specific threat than Trump — with his bizarre inclinations, his ignorance and carelessness, and his sheer unpredictability — can pose.
Mainstream liberals now advance a vision of American government that is increasingly contemptuous of our system’s democratic character and that seeks to break through the restraints of the constitutional system in pursuit of their policy ends. They advance this vision in three key ways.
First, contemporary liberalism has come to ardently champion executive unilateralism. In some respects, this is nothing new. Modern progressivism has always idolized the presidency. Progressivism, as Teddy Roosevelt approvingly put it more than a century ago, is “impatient of the impotence which springs from over-division of governmental powers, the impotence which makes it possible for local selfishness or for legal cunning, hired by wealthy special interests, to bring national activities to a deadlock.” It therefore “regards the executive power as the steward of the public welfare.”
This enthusiasm has waxed and waned, and it is always stronger when Democrats are in the White House. But in the Obama years, it has reached heights unprecedented since at least the early days of the New Deal. Voicing the same kind of impatience TR did with the slow pace of American government, President Obama has repeatedly asserted his power to act alone. “We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need,” he told his cabinet in 2014. “I’ve got a pen and I’ve got a phone,” he continued, pledging to use the federal bureaucracy to advance his agenda on his own if he had to.
And he has frequently thought he had to. The starkest exemplar is surely a set of executive actions on immigration, taken in 2012 and 2014, that sought unilaterally to normalize the immigration status of roughly half of the 11 million or so immigrants who reside in the U.S. illegally. Their status has been the subject of a raging national controversy for well over a decade, and Congress had considered and rejected legislative action on the subject several times in this century. But the president decided time was up and he would act alone — even though no previous president had considered unilateral action on this scale constitutionally permissible, and even though Obama himself had on numerous occasions expressed agreement with this consensus.
In justifying these actions, Obama claimed merely to be setting a policy on how the executive branch would exercise its prosecutorial discretion. But he repeatedly undercut this justification by referring to his impatience with Congress and describing his own steps as a substitute for legislation. “To those members of Congress who question my authority to make our immigration system work better or question the wisdom of [my] acting where Congress has failed,” he said, “I have one answer: Pass a bill.”
This retort was, of course, not an answer at all but an admission that the president had exercised a fundamentally legislative power in violation of the basic structure of our constitutional system. A federal appeals court has since suspended his order, deeming it unconstitutional, and an evenly divided Supreme Court has for now sustained that suspension. But the president and his party continue to insist it is an appropriate use of executive power. Indeed, Hillary Clinton thinks it doesn’t go far enough. “If elected president,” she said in a written campaign statement in April, “I will do everything I can to protect the President’s executive actions and go further to bring more people relief and keep families together.”
Immigration has by no means been the only arena in which President Obama has acted alone and beyond the authority of his office. In the implementation of Obamacare, for example, he has repeatedly altered the substance of the statute to bend it to his will — suspending or refashioning mandates, creating exemptions and waivers where none existed in law, and even providing public dollars to insurance companies without a congressional appropriation. In one instance, in 2013, the House of Representatives moved to codify in law a year-long delay in the law’s employer mandate that the president had unilaterally created. But instead of welcoming the move, the president threatened to veto the measure because it was unnecessary in light of his executive action.
“Net neutrality” regulations on Internet-service providers were the subject of another long-running debate. Congress never showed much interest in enacting them, so President Obama directed the Federal Communications Commission to implement them using the legal pretense that a deregulatory law enacted in 1996 gave the agency all the authority it needed. Over the years, congressional support for a ban on discrimination on the basis of sexual orientation has grown — but not fast enough for the Obama administration, which has had the Equal Employment Opportunity Commission pretend that a ban was implicit in the Civil Rights Act of 1964.
This kind of executive unilateralism obviously did not begin with Obama. And there were certainly times when George W. Bush also asserted the authority to act (specifically in foreign and defense policy) without involving Congress. But these were debatable extensions of presidential power in arenas where the executive was indisputably intended to be most powerful in our system. In the Obama years, we have repeatedly seen such assertions in what are plainly legislative realms — and Hillary Clinton, as the good mainstream liberal she is, would surely seek to press those further.
The second way contemporary liberalism threatens our constitutional order is closely connected to the first: Today’s Left is the party of the administrative state, which is often the means by which executive unilateralism operates but is also far more than that. The term “administrative state” refers to the tangle of regulatory agencies that populate the executive branch, including agencies that are at least nominally “independent.” They increasingly govern beyond the control of the other branches and therefore at times genuinely outside the confines of our constitutional system.
These agencies frequently operate by issuing rules and regulations: several thousand of them every year. These rules are supposed to implement federal laws, but both the growing vagueness of major legislation and the growing assertiveness of the regulators have increasingly meant that the agencies basically legislate through their rules. Some of them then also adjudicate disputes arising from their own implementation of these rules, effectively lodging legislative, executive, and judicial power in a single institution.
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny,” James Madison wrote in Federalist No. 47. Many Americans subject to the jurisdiction of particularly aggressive regulatory agencies might well agree. But the power of such agencies has been growing by leaps and bounds in the Obama years.
Two especially clear illustrations have been the president’s energy and environmental agenda and his approach to financial regulation. Without congressional authorization, the administration has used the Environmental Protection Agency, the supposedly independent Nuclear Regulatory Commission, and other agencies to pressure energy producers, the auto industry, power utilities, and others to toe the president’s preferred line. In one particularly egregious instance, the EPA moved in 2014 to require the states to regulate electricity production and consumption to meet a set of arbitrary carbon dioxide–emission targets — under threat of restricting their residents’ access to electricity.
Meanwhile, the administration’s implementation of the Dodd-Frank financial-regulatory reforms has empowered both old and new agencies to legislate, regulate, and adjudicate immensely complex and highly significant changes in federal law with very little oversight or accountability. But these are hardly the only arenas in which the administrative state is operating beyond the limits of our constitutional system. The immense freedom enjoyed by administrative agencies is a much more concrete and practical threat to our constitutional democracy than even the prospect of an incompetent demagogue in the White House — and it is actively championed and endorsed by Clinton and her party.
Increasingly, these agencies have absorbed portions of the “power of the purse,” which is supposed to belong exclusively to Congress. Some of them fund themselves through fees. When congressional Republicans sought to use Congress’s funding power to prevent the immigration bureaucracy from enforcing President Obama’s unilateral policy, one obstacle in their path was the fact that the fees that the bureaucracy charges go directly to it rather than to the Treasury, and so it could continue to operate as it wished without a congressional vote to fund it. The Consumer Financial Protection Bureau was the Left’s most prized achievement within Dodd-Frank. Simultaneously with its creation, it was given a statutory right to funding from the Federal Reserve rather than through congressional appropriation. In effect, it is an independent agency within an independent agency, well removed from effective congressional oversight.
The Obama administration has also pioneered another way for the government to direct money as it wishes without the involvement of Congress: reach legal settlements that include “voluntary” donations to selected nonprofit groups. Liberal organizations have received millions of dollars from Bank of America thanks to one such settlement.
The contemporary liberal legislative agenda mostly consists of granting these agencies more power and making them less accountable. Much of Obamacare and Dodd-Frank consisted of open-ended delegations of power to the bureaucracy. The administration’s contraceptive and abortive-drug mandate, which has caused so much controversy, began this way. Even the extremely liberal Congress of 2009–10 that passed Obamacare was not willing to say that the Little Sisters of the Poor should have to cover contraceptives and abortifacients for their employees — and members of the thin majority that voted for that law have said they would not have voted for it had it included such a provision. The law did, however, allow the secretary of health and human services to make “preventive health care” services mandatory for employers, and that’s how the administration used its authority (and how a future administration could decide that coverage of surgical abortions is mandatory, too).
The courts cannot, for a number of reasons, be expected to keep the modern state running according to perfectly Madisonian procedures. But they have pushed back on many of the Obama administration’s dubious legal claims. The administration has lost unanimously at the Supreme Court 44 times, setting a record. But the administration has not just sought to make its policies independent of Congress; it has also sought to insulate them from judicial scrutiny.
It has sent “guidance letters” to interfere in the disciplinary policies of schools and universities and, recently, in their policies regarding the use of bathrooms and locker rooms as well. These letters are supposedly not regulations and thus not subject to the notice-and-comment requirements that allow for some modest transparency and accountability in the regulatory process. They are also less subject to judicial review and less transparent in general: They don’t force their recipients to comply, after all; they just strongly suggest that the recipients will be safer if they do. Deferred-prosecution agreements, whose use is on the rise, are another way to regulate off the books: They are a kind of plea bargain in which a company agrees to undertake whatever the government asks in return for a reprieve from legal harassment. The EPA’s power-plant regulations were designed to bypass the courts in a different way: The hope was to make them a fait accompli before they drew an adverse ruling.
If Clinton makes less use of such maneuvers, it is likely to be for a troubling reason. The attitude of the judicial branch is itself changing in a way that threatens the capacity of the courts to defend our constitutional system — and once again it is the mainstream contemporary liberalism Hillary Clinton represents that is driving the problem.
This is the third way in which that liberalism is a threat to American constitutional democracy. Liberal judicial philosophy understands the courts, like the executive branch, to be in the business of advancing what is properly understood as a legislative agenda. In essence, liberals want everyone but Congress — at least so long as they do not control it — to advance such an agenda. This preference leaves them with an entirely consequentialist attitude toward the courts, and they are increasingly uninterested even in making a case for such an attitude as a form of constitutional interpretation.
In the 2014–15 Supreme Court session, in which both a health-care-related case (King v. Burwell) and a same-sex-marriage case (Obergefell v. Hodges) were decided in ways that affirmed important liberal policy goals, the liberals on the Court made for a kind of silent majority. In each case, they allowed a Republican appointee who sided with them (Chief Justice Roberts in the first case, Justice Kennedy in the second) to pen a convoluted opinion that sought to draw some link between the outcome and some kind of legal or constitutional principles, and they did not even trouble to write in concurrence or to articulate a liberal interpretative approach that would independently justify the outcome.
Old tropes about judicial “activism” and “restraint” can obscure the root issue of judicial lawlessness. Whether in “actively” overturning acts of Congress or state laws or in showing “restraint” and affirming a statute or regulatory action they approve of, liberal judges now frequently pursue substantive policy outcomes rather than advance some particular understanding of our constitutional system and its limits. And those policy outcomes are almost always precisely the same ones liberals pursue through a hyperactive presidency and an overreaching administrative state.
This aggressive progressivism threatens our democratic-republican form of government because it begins by seeing the restraints on power inherent in our constitutional system as obstacles to be overcome. It (correctly) perceives that they can best be overcome by weakening the Congress and strengthening the executive and by using the courts as an instrument for both of those ends — thereby making the courts both too strong and too weak to properly serve the constitutional system.
Such contempt and disregard for Congress (the most democratic branch) and for the limits on the powers of the other branches is contrary to the design and aims of our Constitution, and it subverts accountable government and thereby leads not only to a weaker democracy but also to public policy that is more poorly thought out and less effective.
Liberals generally justify all of these work-arounds that subvert normal democratic politics and constitutional processes by claiming that they are but responses to the alleged dysfunction, extremism, and nihilism of conservatives. But such complaints amount to little more than the kind of impatience with our system — and with the very existence of opposition to their ideas — that progressives have articulated since at least Teddy Roosevelt. Conservatives oppose many liberal policies and do use the mechanisms of our constitutional system to attempt to prevent and reverse them. It’s true that our system greatly empowers such opposition: It is frankly premised on the notion that most policy ideas are bad ideas and that making change slow and difficult is likely to serve the country.
That the Constitution makes the work of progressive ideologues frustrating is not an excuse for ignoring and subverting it. That the constitutional system will not acquiesce in its own debilitation is not a justification for debilitating it. Arguments for doing so amount to unprincipled excuses for lawlessness. They make elected officials less responsible, and they are expressions of an impatience with constitutional democracy, not a defense of it.
This is how mainstream liberalism now subverts and threatens our democracy. It is nothing new, but it has gotten significantly worse in the Obama years. It threatens to get only more so under Hillary Clinton, who makes no secret of wanting to use the powers of the presidency to further distort all three branches of our government to better enable liberal governance.
And it is not as though we are giving up government according to the constitutional template in favor of living under the wise edicts of an enlightened elite. The policies that the liberalism of our era yields are deeply unwise and often unjust, and their unwisdom and injustice are connected to their flouting of constitutional forms. Policies ordered by the courts are likely to be more extreme than the policies that would result from democratic give-and-take: Witness our abortion laws, some of the most permissive in the world. Policies developed by bureaucracies and imposed through subterfuge are likely to deform the institutions to which they are applied, as when universities start policing professors’ speech to compel compliance with the latest missive from Washington. Agencies are less likely to act with restraint when their projects have not been subject to the discipline of winning majority support in the House and the Senate as well as approval from the White House. Today’s version of progressive government — the version to which Clinton is committed — is bound to be experienced by millions of citizens as divisive, alienating, out of control, and even corrupt.
This truth hardly negates Donald Trump’s very significant problems. He, too, is not well suited to filling the role that our constitutional system envisions for the federal government’s chief executive. But it does mean that concern for our constitutional system and our democracy cannot amount to a case for Hillary Clinton. Trump could surely do great harm, though no one really knows what he would try to do or whether he would prove capable of doing much at all. Clinton, meanwhile, is an eager champion of a political vision deeply hostile to American constitutionalism and, unlike Trump, is also likely to be able to bring into power alongside her, or to retain in their positions, hundreds of other committed liberals who share that hostility and have the expertise and experience to do something about it from various politically appointed perches in the executive branch.
So what is a constitutionalist to do? In this presidential election, there are no good options. But this year presents us with more than a presidential election. At the heart of the Left’s ambitions, and at the core of many of the troubles bedeviling our constitutional system today, is the weakening of the Congress. That weakening has been driven in part by dereliction on the part of members of Congress from both parties and in part by aggressive hostility from the other branches — and particularly the executive.
Restoring constitutional government will be a long slog. But it is perfectly clear that it requires a strong and assertive Congress, at the very least to resist the ambitions of the other branches but ideally also to restore the prerogatives of the first branch — to rein in the administrative state and the increasingly lawless executive and to begin to bring our constitutional system back toward its proper balance.
However constitutionalists end up voting for president, it is imperative that they elect a Congress so inclined. This year, given the options, they may be able to do no more than that. But they must make sure they do no less.
— Yuval Levin is the editor of National Affairs and a contributing editor of National Review. Ramesh Ponnuru is a senior editor of National Review.