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Lawless Legislators: The Federal Rupture of the Rule of Law

If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

James Madison, Federalist Paper No. 51 (1788)

The Rule of Lawlessness

In the American system the legislature is tasked with making laws, and the executive with executing them. For those rules to be just laws they have to be comprehensible and apply equally to all. Following them must entail reasonably predictable results. To be valid they must not contradict the Constitution; they must not violate the basic rights it outlines.

Lately, Congress and the Obama administration alike fail on all those criteria. While that’s been a problem in the U.S. for generations now, that trend has worsened since the 2006 elections, and accelerated in the past 20 months. The Democratic majority that came to power in 2006 has violated the rule of law at every turn. The administration has upped the ante: from the petty to the critical, their actions have often been lawless in a very literal sense of the term.

In a dozen small ways, the ruling class expresses its contempt for the law and its intended function of protecting the rights of citizens.

Obama’s aunt flagrantly violates immigration law for years but is not deported, thanks to her family connection. Timothy Geithner neglects to pay his taxes and is still appointed Treasury secretary. Chris Dodd gets a sweetheart real estate loan from Countrywide and remains in office years afterward to retire with a comfy pension.

There is, unfortunately, a treasure trove of major examples from which to choose.

ObamaCare violates the Constitution in at least three different ways, and still passed. The financial reform bill lets regulators force any bank in the country out of business whenever they decide it represents an undue risk to “the system.” Obama himself violated long-standing bankruptcy laws by giving preference to union interests during GM’s reorganization. He appointed Ken Feinberg to hand out billions of BP’s dollars according to that petty dictator’s personal sense of fair play.

Maybe most worrisome of all is the half-complete CyberSpace National Asset Act, which would allow the president to shut down the Internet whenever deemed necessary for “national security.” (As it stands, the bill would limit the shutdown period to 120 days, but that can be extended by Congress. Cold comfort.) A more dangerous affront to free speech and the property rights of hundreds of millions of users would be hard to imagine.

This is the rule of men — and not good men at that — run amok.

Blending the Separation of Powers

One of the prime ways this has happened is the accelerated deterioration of the separation of powers in recent years.

As the examples above show, the executive has undertaken to decide issues intended to be left to the courts. In inserting himself into the discussion of which creditors get paid how much and in what order, Obama willfully ignored long-established precedents in bankruptcy law.

Likewise, Congress has significantly delegated its role to federal agencies who not only define details, but basic rules that serve as de facto laws. Those agencies have in turn usurped the role of courts by enforcing their own rulings. The Supreme Court sealed the deal by allowing the EPA to set acceptable standards of air quality, overriding the legislature’s role.

Undermining Compliance

To make laws that man can not and will not obey serves to bring all law into contempt. It is very important in a republic that the people should respect the laws, for if we throw them to the winds, what becomes of civil government?

Elizabeth Cady Stanton (1860)

Worse still for the morality and practicality of the rule of law, Congress has been busy passing laws no one will or can obey.

Attempting to coerce individuals to participate in health insurance commerce undercuts both in several ways. It’s a grotesque extension of the Commerce Clause (as the administration implicitly recognizes, shifting its legal argument every week to a new rationalization). It’s a blatant encouragement for millions to refuse to comply. Writing the statute so the IRS enforcement provision carries no teeth is just one more recognition of that.

Banks can’t possibly comply with the provisions of the Financial Stability Act. Even after creating yet another mammoth (2,300 page) bill, federal agencies now have to craft thousands of detailed regulations, several of them brand-new with the passage of the bill. Hearing this criticism, its chief sponsor Sen. Dodd responded:

It’s the dumbest argument I’ve ever heard. What do they expect me to write, a 100,000-page bill? This is far beyond the capacity, the expertise, the knowledge of a Congress.

The Privileged and the Peons

The rule of law is supposed to support peaceful social integration. That’s hampered when Congress divides citizens into favored and disfavored groups, violating a basic principle of good law: that they should apply equally to all citizens.

The financial reform bill does nothing to alter the federally backstopped status of Fannie Mae and Freddie Mac, the two GSEs at the center of the economic crisis of 2008. The recent ethics charges against Maxine Waters make clear that there are banks, and then there are congressional family projects. The Feds closed Obama’s pet, ShoreBank, then it re-opened the next day under a new name without so much as a bark from the Department of Justice.

Beyond cronyism, the provisions of some of the laws themselves create variations in status among citizens. Following a decades-long pattern of exempting the political class from its own legislation, ObamaCare allows the privileged few to avoid signing up. The financial reform bill further undermines the constitutional rights of executives by involving the federal government even deeper in compensation. (See “Clawbacks,” Section 954, and “Additional Regulations specifying ‘excess compensation,'” Section 956.)

Enforcement has followed a similar pattern. The thugs of the New Black Panthers walk without even a trial because they happen to be radical left-wing activists. Charlie Rangel has yet to see a day in jail, or even a hefty fine. ACORN is still in business, merely weakened and metastasized under a hundred new names.

The Creation of Chaos

Last but far from least, in far too many cases, attempting to follow the laws ensures chaos. It’s been demonstrated over and over again for centuries that price controls invariably produce unintended consequences the controllers themselves dislike. ObamaCare guarantees that no one will have a clue how insurances rates are likely to move. The Financial Stability Act will generate further uncertainty in the derivatives and mortgage markets.

The Progressively Heinous Results

From the creation of the Magna Carta in 1215 to the ratification of the United States Constitution in 1789, Western civilization struggled hard to establish the basic principles of justice and the protection of individual rights.

America’s ruling class, who in a more just society were the severely restrained class, have spent the past century undermining that effort every way they could imagine. Their depredations have accelerated in the past 40 years, reaching a new plateau in the past two. It’s well past time to reverse the trend.

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