Above The Law

Even as a progressive Democrat at Brown and later in public broadcasting and academia, I was never crazy about Barack Obama. It was certainly time to turn the page on George W. Bush, but I was passionate about policy—particularly protecting America’s middle class from the downsides of globalization—and all Obama seemed to offer was a gauzy lifestyle brand. It was smooth, it was seductive, but where was the substance?

While I couldn’t help but roll my eyes at the soaring platitudes of his insurgent presidential campaign—Yes We Can!—it was at least reassuring that Barack was reputedly a constitutional scholar. Progressives had spent years railing against Dubya’s “Imperial Presidency,” insisting that the White House had seized far too much power from Congress and it was high time to rein in the executive branch.

Yet such concerns abruptly vanished with Obama’s resounding victory in 2008, from engineering the new Consumer Financial Protection Bureau to be as removed as possible from accountability to, even more cynically, suddenly imposing “Deferred Action for Childhood Arrivals” (DACA) after frequently acknowledging that such executive action would be blatantly illegal.

DACA in particular marked a disturbing sea change, not just definitively poisoning the well for the sort of balanced compromise between generosity and border security that a bipartisan majority of Americans wanted, but calling into question the executive’s basic fealty to statute. What did legislation really mean anymore if administrative state politicos would pick and choose whatever they cared to enforce?

At Columbia Law, most of the faculty were actively gloating. Except for Professor Philip Hamburger and a few other principled holdouts, renowned legal academics were pumped to end the rule of law and ring in an epoch of schmoozing governance based on elite conventional wisdom and who knew who.

Amidst the abuses and excesses of Obama’s second term, I was tasked with marketing a certain professor’s smug article in the Yale Law Journal insinuating that the bulk of Barack’s opposition was intrinsically illegitimate—that sweeping aside such bumpkins and saboteurs was essentially doing the obvious right thing for our global village.

Bold executive fiat was but well-established “constitutional self-help,” the professor couched in coy legalese, us responsible adults in the room overriding troublesome delinquents as needed. Much as I waved that red cape at George Will and David Brooks and the rest of the center-right punditocracy, nobody bit.

The spirit of the age was best expressed in an (in)famous blog post from Harvard Law luminary Mark Tushnet, who in championing “Abandoning Defensive Crouch Liberal Constitutionalism” called for treating recalcitrants who disagreed with him like conquered Nazis and Japanese and segregationists. “The war’s over, and we won,” he argued.

Solemn concern regarding separation of powers suddenly resumed under a Republican president: the judiciary so much more assertive about blocking executive orders, the press that much more assiduous in scrutinizing the delicate constitutional issues at stake, at least until Covid came along. Remaining compunctions melted away with the swearing-in of Joe Biden, whose reckless abandon exploiting executive and administrative power has made second-term Obama seem like chairman of the Federalist Society.

First and foremost, the border—or effective suspension of such—inviting in millions upon millions of new migrants on top of the tens of millions already illegally in the United States, under the apparent calculus that breaking the social safety net and immiserating what remains of the middle class will force voters to demand bigger government.

While the wholesale abandonment of our borders to cartels and human traffickers represents a stunning dereliction of duty, it’s been primarily a crime of omission; the administration has been equally lawless in active commission, like its cynical scheme to foist hundreds of billions of dollars of student loan debt onto the general public.

In a decade across Columbia I met plenty of students, alums and adjuncts drawn deeper into debt than their degrees would ever earn back. I felt for their plight, but the abusive status quo hardly arose from a vacuum: the entire academic sector was growing ever more bloated with administrative dead weight even as most faculty got treated like meat. Columbia was an especially egregious offender, luring starry-eyed young people into sketchy graduate programs for already-supersaturated fields on the promise of the big city and a platinum brand name.

To the extent that consumers have literally been lied to, they may be entitled to substantial compensation in court. But to the vastly greater extent that predatory institutions more subtly exploit their hopes and dreams, milk their fears and prejudices, resolution gets murkier.

To pin student loan debt on society at large isn’t just a textbook case of regressive taxation, but actively subsidizes the problem—a massive moral hazard encouraging naïve kids to make unrealistic decisions while feeding further institutional metastasis. Helping relieve some student debt is a good idea, but doing it sustainably requires putting higher education way more on the hook for its customers’ outcomes.

In particular, those institutions with lots of assets. After 270 years Columbia is one of New York’s largest landowners, with an endowment topping $13 billion—modest by Ivy League standards. Why shouldn’t such wealthy supposed nonprofits subsidize far more of their students’ tuition, or start paying some taxes?

Assuming, of course, that any legislation affecting such power players in the Democratic coalition would ever actually be enforced. It's hard to say: perhaps with a change in administration to someone not from reality TV the administrative state might accept some modest reforms on the margins, but probably not. Why would they, when any impediments to their agenda are but fascism to eradicate?

And thus in the doddering stage of American empire both parties are locked into a runaway arms race of executive excess, mutually assured destructors, each laying waste to the rule of law and very notion of representative government. But with effective control of almost every major institution, the Democratic Party is much better at it and consequently even more dangerous. Yes We Can!, indeed.

---

---

---

Next: Renegade Centrism

---

---