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The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law

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Publication Details

Hardcover / 216 pages
ISBN: 9781594038334
PUBLISHED: 11/17/2015

The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law

In Lawless, George Mason University law professor David E. Bernstein provides a lively but scholarly account of how the Obama Administration has undermined the Constitution and the rule of law.

Lawless documents how President Barack Obama has presided over one constitutional debacle after another—from Obamacare, to unauthorized wars in the Middle East, to attempts to strip property owners, college students, religious groups, and conservative political activists of their rights, and much, much more.

Violating his own promises to respect the Constitution’s separation of powers, Obama brazenly ignores Congress when it won’t rubberstamp his initiatives. “We can’t wait,” he intones when amending Obamacare on the fly or signing a memo legalizing millions illegal immigrants, as if Congress doing its job as a coequal branch of government somehow permits the president to rule like a dictator, free from the Constitution’s checks and balances.

President Obama has also presided over bold and rampant lawlessness by his underlings. Harry Truman famously said “the buck stops here.” When confronted with allegations that his administration’s actions are illegal, Obama responds, “so sue me.”

Lawless shows how President Obama has betrayed not just the Constitution but his own stated principles. In the process, he has done serious and potentially permanent damage to our constitutional system. As America swings into election season, it will have to grapple with the need to find a president who can repair Obama’s lawless legacy.

About the Author

David E. Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, Virginia, where he has been teaching constitutional law and other subjects since 1995. He is the author of several books, most recently Rehabilitating Lochner: Defending Individual Rights against Progressive Reform. Professor Bernstein blogs at the Volokh Conspiracy, hosted by the Washington Post.

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Even as the partisan political divide continues to widen, one thing has long united Democratic and Republican presidents—aggressively expanding presidential prerogatives at the expense of Congress.

Presidents are naturally inclined to test the legal and political limits of their power. In part, this is because politicians naturally desire to get as much political power as they can. But in part, it’s because the Constitution’s original design has been upended by the evolution of American politics.

Congress, not the president, is supposed to have primary responsibility for most lawmaking. In practice, however, the public gives the president credit and assigns him blame for everything that happens under his watch. Presidents want to have as much control as possible over their political fate, even if that means illegally expanding their own authority at the expense of Congress.

Moreover, Congress has found it politically convenient to pass vague, broad laws. The laws give the president and his underlings the authority to work out the details, providing many opportunities for abuse. Finally, the rise of the United States as the greatest military power in the world has concentrated power in the president because he is the commander-in-chief of the American military. Congress, meanwhile, has rarely tried to limit this power.

The result since at least the Theodore Roosevelt administration in the early twentieth century has been an ever-expanding “imperial presidency.” Congress enacted a series of reforms in the 1970s after the Watergate scandal and the Vietnam War to try to curb presidential excesses and reassert Congress’s authority. These reforms have been largely ineffective, and the president’s power has continued to grow under both Democratic and Republican presidents. The George W. Bush administration was especially aggressive in claiming unilateral authority over military and foreign affairs.
military and foreign affairs.

To some extent, then, the Obama administration has simply continued trends inherited from its predecessors. Obama, however, has asserted broad presidential prerogative across an unusually wide range of policy areas. As one liberal law professor puts it, “while Obama did not create the uber-presidency, he has pushed it to a new level of autonomy and authority.”

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