George Will today argues that President Obama’s violations of the Constitution are even worse than Nixon. The last time Will compared Obama to Nixon was all the way back in May, when he began a breathless column on the IRS by quoting one of the articles of impeachment against Nixon (“He has, acting personally and through his subordinates and agents, endeavored to . . . cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be initiated or conducted in a discriminatory manner.”) It later came out, first from the report of the agency’s (Republican) inspector general and later through the testimony of a (Republican) agent, that the administration did not order the IRS to scrutinize anybody. Then it came out that the IRS scrutinized liberals too. That’s kind of different than the president ordering the IRS to single out leading Democrats’ tax returns, as Nixon did.
Today’s Nixonian comparison is the Obama administration’s administrative delay of some provisions of the Affordable Care Act. Obama was asked about the delay at a press conference, briefly asserted that he has the legal authority, and then explained why he’d prefer to change the law legislatively but can’t do so. Will notes that nobody asked if this is constitutional, but obviously it’s not:
Journalists did not ask the pertinent question: “Where does the Constitution confer upon presidents the ‘executive authority’ to ignore the separation of powers by revising laws?” The question could have elicited an Obama rarity: brevity. Because there is no such authority.
In Will’s mind, this settles the legal question. Nobody asked Obama, but if they did ask, he’d have no answer, so there you go. Verdict: unconstitutional! Having established the legal premise to his satisfaction, Will then launches an extended comparison between Obama and Nixon, which he resolves in favor of the latter. (“Nixon’s claim, although constitutionally grotesque, was less so than the claim implicit in Obama’s actions regarding the ACA.”)
Like Will, I am not a law professor. I do, however, note a few wee flaws in his most recent Nixon hyperventilations.
First, even though Obama did not expound upon his legal rationale at the press conference, his administration has provided a legal rationale. I’m not competent to judge it. You can read a good summary of the arguments here. The main point, to me, is that “this is something that the agency has done more than a dozen times before,” which is to say, federal agencies delay the implementation of statutes for practical reasons all the time without anybody bringing up Nixon. Will seems to think that, when a president fails to make a legal argument at a press conference, he forfeits the legal case. This is Barry Zuckercorn–level legal analysis.
Second, and more puzzling, if Will is so certain Obama violated the Constitution, then why is he getting away with it so easily? Let me explain what the Constitution is: It’s a set of binding laws. If the president is blatantly shredding the Constitution, then there are supposed to be consequences more severe than getting called a Constitution-shredder by bow-tied Anglophile columnists. The way it works is, somebody brings a legal case. Will’s apparent resignation in the face of a massive constitutional violation raises the question of just what good he thinks the Constitution is, anyway, if Obama can ignore it at will.
Now, probably when Will invokes “the Constitution,” he doesn’t mean the actual Constitution but the tea-party Constitution, which is less a set of formal laws than a general principle that Democratic presidents shouldn’t pass laws that really freak out conservatives. Obama may not be violating the law per se, but George Will feels violated by the break-in Obama has ordered into his soul.
Richard Nixon was a really, really bad guy. It’s worth noting this fact because Nixon has become a kind of domestic analogue to Hitler, invoked as a comparison by everybody, all the time — not just conservatives but also liberals, including a good chunk of Hollywood. Nixon’s administration ordered a break-in to the headquarters of the opposition party and then destroyed evidence of the crime. He ordered the firebombing of the Brookings Institution! If you find yourself tempted to compare a president you don’t like to Nixon, ask yourself, Is this pretty much how I’d react if he had a gang of goons break into the opposition party’s headquarters or told his subordinates to destroy the American Enterprise Institute? If not, you probably need a new comparison.