Faithless Execution. Andrew C McCarthy

action is entirely dependent on the administration’s willingness to honor judicial directives. Congressional oversight requires an administration’s cooperation. A president of dictatorial persuasion who coopts the media in his disregard for the system’s checks and balances is nigh impossible to contain.

      Nor is there reciprocity any longer in our separation of powers. While the executive now legislates and rules, the other branches cannot enforce their own statutes and decisions. The imperial presidency has become the administrative state, the legacy of progressive fondness for a metastasizing government whose purportedly expert, apolitical bureaucracies supplant popular sovereignty. The Wilsonian vision was installed through the ceaseless exigencies of Roosevelt’s twelve-year reign; and long before Rahm Emanuel came along, FDR knew that a crisis was a terrible thing to waste.

      Today, well beyond the New Deal and the Great Society, the administrative state is socializing health care, micromanaging industry, dictating education standards, taking over automotive and insurance giants, underwriting mortgages and student loans, borrowing trillions of dollars from itself (i.e., printing trillions of dollars for itself), and even mandating coverage for contraceptives and abortifacients. The president oversees a vast expanse of executive agencies, and exercises enormous influence over ostensibly independent commissions, to which Congress delegates seemingly limitless legislative authority in the form of regulation-writing power. Much of the resulting tens of thousands of pages is insulated from judicial review. Presidents issue executive orders to shape Leviathan’s priorities and procedures. The lines blur, and it becomes increasingly difficult to stop a president hell-bent on imposing his political aims as if they were legal duties.

      Congress is endowed by the Constitution with the power to impeach a president for serious violations of law (“high crimes and misdemeanors”). Impeachment is a grave remedy on the order of a nuclear strike. It has been sparingly invoked against presidents—only three times in our nation’s history. Andrew Johnson and Bill Clinton were impeached by the House but acquitted in Senate trials; Richard Nixon resigned to avoid sure impeachment and removal. As we shall see, impeachment is a political remedy: even if palpably guilty of profound transgressions, a president will not be ousted without a groundswell of public ire. It has thus been thought impractical as a response to all but the most egregious abuses of executive power, involving attacks on the constitutional foundation of our liberty.

      It is the burden of this book to persuade readers that President Obama and his administration are engaged in just such a campaign. That said, impeachment is not a plausible response unless the American people become convinced not only that the campaign is real but also that a governing system they wish to preserve is mortally threatened by it. Are we still a self-determining people resistant to the freedom-devouring proclivities of an imperial presidency? That is much harder to answer than the question whether “high crimes and misdemeanors” have been committed.

      If a president is the type of man who couples his hope with audacity, if he is willing to play Alinsky-style hardball despite his oath to uphold the Constitution and faithfully execute the law, there is little that can stand in his way—not if Congress is unwilling to use its competing constitutional powers. Law becomes a dispositive weapon in the service of the president’s ideological crusade, never a brake against the crusade’s advance. In the Obama administration, “rule of law” talking points are just rhetorical camouflage. True law is the moral and ethical consensus of a civil society, reflecting the conscience of a free and virtuous people; but to Alinsky, “conscience is the virtue of observers and not of agents of action.” For his disciples, the agent of action must be the Ruler of Law—its master, not its servant.

      American constitutional republicanism has been strong enough to survive over two centuries of self-governance, civil war, world war, terrorism, social upheaval, and periodic economic calamity. But can it survive a Ruler of Law and his trusty pitchforks? The Constitution says we need not be put to that test. The Framers gave Congress checks to combat executive lawlessness. The ultimate one is impeachment. There is a rich legal case for using it. But impeachment is not about what the law allows. Impeachment is a matter of political will.¹

PART I

CHAPTER ONE

       WE DON’T HAVE THE VOTES

      “It’s a good question.”

      Ted Cruz was answering a query from a woman in the audience for a dinner speech. His topic was lawlessness in the Obama administration. This being Montgomery County, Texas, rather than the Beltway or the Upper West Side, the subject was deemed fit for respectable discussion. The woman’s question specifically concerned the president of the United States, and it was succinct:

      “Why don’t we impeach him?”

      Senator Cruz was right: It is a good question.

      Impeachment, after all, is not a high mountain to climb. The Constitution vests in the House of Representatives “the sole power of impeachment.”¹ Currently, the House is controlled by President Obama’s opposition: Republicans hold a comfortable 33-vote majority, with reasons for optimism that their ranks will swell after November’s midterm elections. Formal “articles of impeachment” require just a simple majority for approval. The historical rarity of impeachment owes to its gravity, not its difficulty.

      Besides, despite the GOP’s seething intramural divisions, there is nigh unanimous revulsion when it comes to Obama’s agenda. In fact, even Democrats—especially those facing tough reelection races in the fall—have taken to avoiding joint appearances with the president. His poll numbers have tanked. Hope-and-Change delirium has given way to the hard reality that we really can’t keep our health insurance policies and our doctors if we like them. The public grows angrier with each insurance cancellation notice—or is it, each million cancellation notices?

      Even Obama sympathizers at the Washington Post, putting their best spin on the matter, concede that 21 million people are out of work, not the 10 million grudgingly acknowledged by the administration.² In fact, the real unemployment rate of about 13 percent is double the rate routinely reported by the media.³ By December 2013, the population of Americans over the age of sixteen without a full-time job had climbed to a staggering 92 million—far exceeding the total population of Germany, the world’s fourth largest economy.⁴ In a nation that has grown by nearly 10 million people since Obama took office, 11 million fewer people are working today than in 2009—marking a nadir in American workforce participation not seen since the Jimmy Carter malaise.⁵

      Remarkably, prominent liberal law professors—a core Obama constituency—have even begun speaking up about the administration’s abuses of power. George Washington University’s Jonathan Turley describes Obama’s imperialism as the “uber-presidency,” conceding in congressional testimony that the president has enveloped the nation in “the most serious constitutional crisis . . . of my lifetime.” (Yes, Professor Turley did live through Nixon.) In more recent testimony he added, “The president has in fact exceeded his authority in a way that is creating a destabilizing influence in a three-branch system.”⁶ Harvard’s Alan Dershowitz has slammed the Justice Department for its “outrageous” and “selective prosecution” of a conservative Obama critic—a case that reportedly put Professor Dershowitz in mind of Lavrenti Beria, Stalin’s infamous secret police chief, who said, “Show me the man and I’ll find you the crime.”⁷

      The alarm is way overdue, but it is not surprising. So rampant are President Obama’s violations of law and derelictions of duty that it has become a chore to summarize them. But let’s give it a shot.

      The president has assiduously ignored the chief executive’s fundamental constitutional obligation to “take care that the Laws be faithfully executed.”⁸ He has repeatedly