Belmont Club

The White House vs the Other Branches

The refusal by the White House to release documents pertaining to the “Fast and Furious” gun release operation to Mexican gangs on the grounds of Executive Privilege, coming as it does on the heels of President’s announced intention not to enforce certain parts of immigration law reflects the simple calculation by the President that he can get away with it.

In legal possession of the executive power and in political possession of many parts of the bureaucracy as well as the media he may believe that there is simply no way anyone can make him follow the law, should he choose to defy it in any non-obvious way.

If, for example, Congress were to cite Holder for contempt, it would have to rely largely on the Executive branch to carry out the investigation of the Attorney General.

Technically, the citation goes to the US attorney for DC to present to a grand jury. Usually, lawyers for the White House and Congress huddle and work out some accommodation — but relations may be too poisonous for that now.

Holder also has the option to simply not prosecute himself — which would surely set off a firestorm, as would any attempt by him or the president to assert executive privilege at this late date.

Who believes Holder would prosecute himself?

A political firestorm might result to be sure. But to paraphrase Joseph Stalin, how many law enforcement agents has Congress? The same limitation applies to a possible Supreme Court decision against Obamacare. As Ken Kluckowski’s legal analysis at Breitbart shows, excepting a total strikedown of Obamacare, a decision affecting only the Individual Mandate will still let the President gather up the surviving aspects of the law and implement them, probably in ways advantageous to himself.

James DeLong quotes Clint Eastwood’s line to Tuco in the Good, the Bad and the Ugly. “There’s two kinds of people … those with loaded guns and those who dig — you dig.” Congress and his opponents are being made to dig. If the past is anything to go by, the surviving elements of the Obamacare law may in time be extended or interpreted to fill in for the stricken Individual Mandate.

Even in the case of a total strikedown, Juan Williams suggests that the President may react by taking the time, at least until November, to deliver “a bitter attack on the current court as a corrupt tool of the Republican right wing.” Obamacare will be presented as the new Citizens United case, just another reason why all government, except the Executive Branch, is illegitimate. The President has demonstrated more than once that the law is what he is inclined to respect.

In point of fact the reputation of Congress with the public is exceedingly low, so low that Democrats are actually expected to increase their seats in the lower house in 2012, though not to the point of recapturing it. Therefore it is unlikely that Congress or the even Supreme Court can bring the President to decisive heel.

While this does not mean that the system of checks and balances has failed, it certainly raises the question of whether those safeguards are still operative when the President is someone who will stop at nothing. Has the Constitution failed? Before the proponents of executive power celebrate, they should remember that the possession of a slender or forced advantage is insufficient to support legitimate governance.

The separate operation of the different branches of government may still impose a buffer sufficient to prevent a marginally stronger branch from getting its way.

A working democracy doesn’t consist of what the minority or slim majority can get away with, but with of a set of actions the bulk of the population is prepared to support. Otherwise an inordinate amount of coercion and deceit will have to be used to implement and sustain a given policy. Coercion in that degree is too expensive to maintain without bankrupting society and delegitimizing all its political institutions.

Even if the President can hold out against Congress it does not mean he has ‘won’ if that action has the effect of making the rest of society resent him. Congress can’t force him, but he can’t force his will on everybody else either.

Tuco might have told the Man With No Name that in a society divided into men with guns and men with shovels, those with guns will starve if those with shovels stopped digging up the potatoes. In the long run the men with the potatoes are more influential than the men with guns.

Therefore, although the President can physically defy Congress and the Supreme Court it does not mean he has gained unlimited freedom of action. He’ll find that these bureaucratic victories have been purchased at the price of increasing the actual degree of his impotence.

The European Union is discovering this effect right now. The more formal power they gained the less they could actually do. Every authoritarianism rediscovers that the more people they intimidate, the fewer the potatoes they can dig up; that the more industries they distribute to their cronies, the less the number of jobs there actually are to go around.

If Congress declares Holder in contempt in the face of the invocation of executive privilege, the probable outcome is a scissors-like engagement between the two branches of government, in which both branches bleed energy and speed, as expressed in units of political legitimacy, from now until election day. Neither can get the decisive shot on the other: Congress because it cannot force the executive’s hand; the executive because it cannot impose its political will on a what is probably a popular majority disgusted with his high-handed actions. Even if the executive branch is tactically more powerful than either of the two, in strategic terms, it is still a stalemate.

In the end, as in a dogfight between airplanes, the side with more energy will likely win. Given the prevailing economic trends and the growing disenchantment with Obama’s policies, Congress will probably be more able to keep up its airspeed in the long run than the President, its chronic unpopularity notwithstanding.

Invoking executive privilege was probably a bad move. It won’t be evident right away. But it will be as time goes on. The President has taken the political combat into very expensive territory in energy management terms.  He has neither the altitude nor the fuel to protect either Holder or himself in the long run.

There will eventually come a day when Obama is no longer President and Holder no longer Attorney General, but the victims of Fast and Furious will still be dead and the guns released under that ill conceived operation will still be killing people. What will he do then?

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