The Aroma of Illegality

It’s getting stronger, that stench of illegality, and it’s emanating from places high as well as low.

For the last few weeks, Madison, Wisconsin, has been Malodorous Central, as various government employees, from the 14 Fleebagging Democratic state senators to protesting teachers and sundry public union apparatchiks, have endeavored to substitute mob rule for the rule of law. “After the vote on collective bargaining in the Wisconsin Senate,” John Hinderaker reports at Powerline, “armed guards led Republican Senators through a tunnel, out of the Capitol and onto a waiting bus, which reportedly was commandeered for the purpose on an emergency basis. A howling mob of union members threatened the Republicans, shouted obscenities and pounded on the bus.”

Useful data point: the mobs were howling because a majority of their duly elected officials had just passed legislation that they had, while campaigning a few months back, promised to lobby for. No one should have been surprised by Scott Walker’s efforts to get Wisconsin’s finances under control: he just did what he had promised to do if elected. And he was elected. And elections, as President Obama said long, long ago, in what seems like another country, “have consequences.” (The rest of that famous quotation: “at the end of the day, I won.” Imagine if Scott Walker had said that!)

Madison has distinguished itself for thuggishness. But that “get-a-little-bloody” sort of activism (thank you, Congressman Capuano)  is only one facet of the illegality that is wafting about the republic. A small fuss was made a week or two ago when President Obama announced that he was directing his Department of Justice to forgo enforcing the Defense of Marriage Act, that somewhat desperate prop to “traditional” marriage (one man, one woman) that Bill Clinton reluctantly signed into law in 1996. Many of Obama’s critics cried foul, claiming that he was abrogating his Constitutional duty to uphold the law. In fact, as Andy McCarthy pointed out at NRO, presidents regularly decline to enforce statutes they believe are unconstitutional. “The problem with what the Obama administration is doing with DOMA,” Andy observed, “is political, not legal.”

Nothing requires a president to defend or enforce a law he truly believes is unconstitutional, or even a law he believes is constitutional but chooses, in his discretion, not to enforce as a matter of policy (see, e.g., Obama on the immigration laws).

Putting the law to the side, it is outrageous for an administration to use its Justice Department’s privileged position as the lawyer for the United States to sabotage a case, and for a president to claim his legal position is evolving when, in fact, he is transparently pandering to a key constituency.

Obama and Eric “My People” Holder may natter on about “equal protection.” That’s just talk, though. What they care about is not the 14th Amendment but their political program.  Example: if you are a white voter in Philadelphia, you don’t get equal protection from armed Black Panthers who strut about polling places. And if some nebbish in the Justice Department who hasn’t gotten the message  brings a suit against the Panthers, a higher-up (maybe even “My People” Holder himself) can quietly drop the suit when he thinks no one is paying attention. Sniff, sniff: catch that acrid scent? Just wait: when the governor of  Arizona decides to enforce the state’s immigration laws, it is the work of a moment for “My People” Holder to file a federal suit seeking to declare the law “invalid.” Now you smell it, don’t you?

These are obvious, industrial-strength, belching-cloud sorts of illegality -- the sort that make it onto Fox News and blogs across the country. More subtle, yet in the end no less odoriferous, are widespread efforts by the Obama administration to rule by executive fiat. It wasn’t so long ago I was being assured by various conservatives that Obama’s  “cap-and-trade” legislation was “dead in the water.” Oh, the poor dears!  They thought that just because that species of lunatic self-immolation on the altar of pseudo-environmentalism  had failed in Congress, it was therefore defeated.

What they failed to notice is that voting for the Obama administration is merely a formality. It counts only to the extent that it ratifies the policy being proposed. Otherwise, it is a mistake that must be rectified by going quietly behind the scenes and effecting the policy by extra-legislative means. Isn’t that why God created the EPA: to circumvent the will of the voters (who don’t know what’s best for themselves anyway) and provide them with green energy, green jobs, a green economy? (It’s only spoilsports who point out that green energy means “less energy,” just as “green jobs” means “fewer jobs” and  a “green economy” must be sharply distinguished from a “productive economy.”

It’s the same with ObamaCare. The public hates it. The Republican Congress is endeavoring to repeal or at least emasculate it.  To date, however, it just goes on its merry way. As Conrad Black points out in a superb essay at NRO, “the Republican plan to starve Obamacare of funds has been frustrated by a combination of pre-funding $105 billion in the initial 2,900-page bill, and granting the HHS secretary vast discretion to fund it on her own authority, seems to compound the measure’s inherent failings with fiscal indestructibility, a usurpation of what are generally thought to be the rights of the legislature.”

“The rights of the legislature.” Remember those artifacts of yesteryear?  What we are embarked on now is an imperial effort to turn the legislature into cheerleaders for policy formulated by unelected elites.  That’s the way they do things in Europe, and that’s the way Obama and his enablers want us to do things here.

Hence the virulence of the reaction in Wisconsin.  The real issue was not whether public employees should have the right to bargain collectively but whether public employees should be answerable to the people or to the party they helped to elect. Is it “We the people” or “We the party”? Sniff, sniff. There’s something rotten in the state of Denmark.  The question is how long we’re going to lounge around like Hamlet, sicklied o’er with the pale cast of whatever it is that passes for thought.

The Democrats have put the country on notice: the choice they’re offering, as a friend of mine put it, is “rule or ruin.” Either we play their way or they take their votes and decamp to Illinois or wherever, leaving behind an assortment of union thugs to sort out the opposition. It’s unpleasant. It smells bad. But either we stand up for liberty and responsibility now or we continue to spend our way into oblivion, servitude, and that gangrenous green utopia the politically correct hail as paradise.