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How to Curb the Growth of the State

By: Michael Taube
July 26, 2016

everal U.S. presidents have earned praise for limiting government and spending the people’s money carefully. Others have been attacked for making government more powerful, intrusive, and expensive.

And then there’s Barack Obama. His eight-year project to make American government both overfed and insatiable puts him in a class of his own.

Dean Reuter and John Yoo’s Liberty’s Nemesis depicts Obama’s astonishing success in turning a historical negative, government spending, into a modern-day legacy project. While Reuter’s introduction acknowledges “this President is not the first to overreach...on a playing field that has been decades in the making,” he also points out that “the Obama administration and its agencies have perfected the art of exercising domestic power and overreaching their granted authority.”

The book’s sizable number of contributors—37 in all, including the two co-editors—elaborate this analysis. Some of the luminaries are former or current politicians (Senator Orrin G. Hatch, Bob Barr), academics (Richard A. Epstein, Jonathan H. Adler, Ronald A. Cass), lawyers (John Shu, Charles J. Cooper, C. Boyden Gray) and other prominent figures (Linda Chavez, Michael B. Mukasey, Peter J. Wallison). They present an impressive, air-tight case that Obamafication has been devastating, and try to provide solutions to bend the government growth curve downward.

Several contributions stand out. According to Adler’s analysis of the Patient Protection and Affordable Care Act (PPACA), the policy Kraken known as Obamacare, “the administration has repeatedly departed from the text of the law, altering and ignoring provisions it did not like, did not wish to implement, or otherwise found objectionable.” The inglorious Act that “the President signed into law” therefore isn’t the same Act that we’re discussing today. This means, in effect, that “[m]illions of Americans are subject to the PPACA’s penalties and mandates as a consequence of administrative action, instead of legislation enacted by the people’s elected representatives.”

When it comes to religious liberty, Gerard V. Bradley and Robert P. George write that the “‘church-state’ question” was solved “with a touch a magic: religion would simply vanish from the radar screen of public authority.” Hence, the divide between religion and politics “would not count in public, and in private it would register, and be regulated, under non-religious descriptions.” Although the authors note this “breathtakingly audacious campaign has so far been only partly successful,” the fact that the Obama administration has even made this attempt is alarming.

Chavez’s examination of immigration policy is also important. While she points out “the argument that amnesty simply encourages future waves of illegal immigration” has its appeal, “the real driver of illegal immigration is current immigration law.” Rather than “adopting sensible, market-based measures to increase the number of persons admitted to the United States to create legal avenues for needed workers to migrate here, the law penalized employers for hiring undocumented workers.” Moreover, Chavez wrote that “immigration reform was not on the President’s agenda, and it only became so when he saw it providing an electoral advantage to Democrats.”

Meanwhile, Obama “has consistently undermined the separation of powers and sought to aggrandize the power of the presidency at the expense of Congress” in Orrin Hatch’s view. For example, this administration has been “defying or rewriting duly enacted statutes.” Obama “has also used Congress’s decisions not to act as grounds for assuming legislative power,” including policy debates concerning the minimum wage and No Child Left Behind.

It doesn’t stop there.

Adam P. Laxalt and Lawrence VanDyke identify a “land grab” made by the Environmental Protection Agency and the U.S. Army Corps of Engineers that “expands the jurisdiction” of the Clean Water Act “to cover agricultural waterways and rain-filled ditches.” Cleta Mitchell discusses the IRS “targeting scandal” involving the Tea Party, and how the White House was “lying to Congress” and using “every means available to silence its political enemies, critics, and citizens who oppose Obama administration policies.” Samantha Harris and Greg Lukianoff use the battle over Title IX to show how the Office for Civil Rights “has shifted from a focus on overt sexual and racial discrimination to the adoption and enforcement of a ‘hostile environment’ theory that has led to significant restrictions on free speech on campus.”

When you put it all together, Obama has reduced the individual rights and freedoms that Americans have cherished for generations. What can be done in response?

The most obvious directional shift would be to reduce the executive branch’s power and reach, returning to a more democratic form of government. As Epstein wrote, “Executive misrule remains the order of the day” and that “Executive Branch overreach may be used to transform sensible legislation into a regulatory monster.” Hatch, for his part, suggests that “Congress should ensure that the President is held accountable for his actions through meaningful judicial review.” This is something we’ve not seen during the Obama years—for obvious reasons—and it needs to be desperately implemented.

Yoo goes a bit further in the book’s conclusion: “if conservatives are ever to reverse unaccountable government, they must fundamentally change their approach to constitutional law and the Executive Branch.” Various Obama administration scandals involving health care, immigration, and national security “all flow from the same source—the overgrowth of the administrative state.” As Yoo sees it, while this problem was “[i]ntroduced by one liberal president, Woodrow Wilson, expanded by a second, Franklin D. Roosevelt, and perfected by a third, Lyndon B. Johnson, the welfare state has metastasized under Barack Obama.”

At the same time, as much as “they may enjoy watching Obama flounder,” writes Yoo, “conservatives can use these scandals as an opportunity to reform the administrative state.” The options include: “disable and hobble it” by attempting to “jettison some the favorite legal doctrines of the current era,” “re-think some of their constitutional hostility toward Congress,” and “create a system of legal principles based on natural rights that judges can meaningfully enforce.”

So, there are strategies to sweep away Obama’s legacy project of a monolithic state, and put America back on the right economic and political path. Neither Donald Trump nor Hillary Clinton are likely to support any such project, of course. But two big facts—both of them are very unpopular, but one of them will be president—argue that Americans in 2017 may be more receptive to limiting the administrative state than at any time since the New Deal.

Come celebrate Constitution Day 2016 with Dr. John Eastman and the Claremont Institute’s Center for Constitutional Jurisprudence at Chapman University School of Law, Orange, CA, September 17 2016.