President Obama called today (July 9, 2012) for extending the Bush tax cuts for the middle class. He didn’t so pledge, but if Congress refuses to comply, he could simply order the IRS to quit collecting taxes over and above the Bush-era rates after the cuts expire at the end of the year. The precedent has already been set with his pledge not to enforce immigration laws that he doesn’t like.
There’s no clause on point in the Constitution for what to do when a Chief Executive refuses to enforce and administer the nation’s laws, and who instead asserts something like imperial privilege by refusing to perform his constitutional duties. It is apparently not something the framers of the Constitution envisioned would be a problem. Obama’s refusal to perform his duties may come under the rubric of “High Crimes and Misdemeanors” that are impeachable offenses. But if Obama won’t enforce the laws passed by the legislative branch, why would an impeachment proceeding, which constitutionally must arise in the legislature, give him pause?
There is always the potential for mandamus (Latin for “we command”) issued by the US Supreme Court, directing Obama to enforce the laws as written, but if he’s not overly concerned with what the legislature does, why should he be overly concerned with what the other co-equal branch of government has to say? Obama has slipped a bit too easily and cavalierly into the imperial robes.
Perhaps the best check against an imperial presidency is the ballot box, but history proves it could also provide the impetus. Caesar’s usurpation of senatorial power was wildly popular with the Roman plebes. The Senators didn’t much like it, as their dagger thrusts attest, and it is assumed neither would the legislative or judicial branches of today’s American government be particularly enamored of the prospect of irrelevance posed by an imperial executive. Surely in some way or another, if Obama continues on his apparent quest to achieve the modern-day equivalent of a Roman Emperor, he will meet much the same fate as Caesar, if only metaphorically. It’s doubtful that senators, congressmen or jurists would employ anything more fatal than verbal and legal daggers to dispose him. The tussling for political power is hardly so dramatic these days. But Obama should be careful. He’s apt to lose the support of even his putative Democratic allies in the co-equal branches if he goes too far. If loyalty to Obama comes at the cost of betraying the institutions, legislative or judicial, from which one’s power is derived, Obama will find he has very few political allies. His presidency will die from a thousand cuts.
I’ve learned from years of watching Alabama gubernatorial politics that sometimes the best means of dispensing with a political rival is to have him charged and convicted of some crime or another while he was holding office. The daggers of criminal indictment are far more politically expedient these days than are the ancient ways of actually spilling blood. Two of the last six Alabama governors had their political careers ended on convictions of quite dubious merit. Guy Hunt was the first Republican governor in Alabama since Reconstruction. It was almost guaranteed the still-Democratic legislature would seek a way to oust him, which they did. He was convicted of using campaign funds for personal use, and forced from office, but was later pardoned. How, exactly, it is possible to tell the difference between using funds for personal or campaign use is beyond me, and was also apparently beyond the ken of the jurors in the case of former presidential candidate, John Edwards, who was accused of roughly the same thing, yet was acquitted.
Don Siegelman was the last Democratic governor of the state, as the switch from one-party rule by Democrats to one-party rule by Republicans was nearly complete by the time he was defeated for re-election by Bob Riley. Siegelman posed a viable threat to the continuation of Republican ascendancy, but it is surely just a coincidence that a Republican US Attorney brought charges against him, effectively for the crime of taking a campaign contribution from a despised businessman. On the standards that Siegelman was convicted, every last pol in the country should be in jail. But his case was a two-fer for the US Attorney, as the supposed bribes were received from former HealthSouth CEO, Richard Scrushy, who had successfully courted Birmingham’s black community (i.e., Democrats) in escaping conviction for accounting fraud. The line between bribery and campaign contribution is always a fuzzy one, but the US Attorney proved that it becomes much clearer if the putative bribe came from an overwhelmingly despicable, yet megalomaniacal, fraud of businessman who had just embarrassed the US Attorney’s office in a separate case on an accounting fraud indictment.
The strategy of disposing of potential political rivals by conviction and incarceration seems to be creeping up the federalism ladder. With Obama’s election came calls to have George W. Bush tried for war crimes, specifically, torture. The Obama Administration has so far refused, which makes sense. Bush is no longer a potential political rival. Why spend the money and political capital that would be necessary to destroy Bush’s political credibility when he poses no threat to power? The backlash that might ensue could make such a prosecution quite expensive, with the potential for only dubious and attenuated returns.
But if Obama is not reelected, he had better lawyer up. Obama has gone much farther than the illegal torture accused of Bush as to the war crimes for which he might be indicted. Obama has personally ordered the assassination of US citizens. By anything except the War on Terror’s amorphous ethical and legal standards, Obama has committed murder, and it’s not altogether clear that the Supreme Court’s expansive deference to the Executive branch in the War’s prosecution would save him from indictment and prosecution.
And if Obama fails at reelection, his continued political viability would present exactly the type threat an ex-governor in Alabama presents to the incumbent: He would still have the potential for another term. Except for the limitations on future presidential power and imperatives a successful prosecution would imply for the new president going forward, there would be nothing else to discourage the indictment of his predecessor, and a great deal to be gained. Considering the contempt Obama has shown for his putative equals in the legislative and judicial branches, the new president might even score political points with his ostensible political rivals by dint of the prosecution. At the least, Obama’s erstwhile allies in the legislature and judiciary would not likely offer much in the way of his defense.
The public might even support such a prosecution. Any American citizen who stopped for a moment to consider that it might one day be them on the other end of a pilotless drone attack ought naturally agree that the assassination of US citizens by pilotless drones exceeds by degrees the power which they wish to be entrusted to any one man. Even, or especially, those among the liberal crowd who wanted to prosecute Bush for the crime of torturing prisoners ought to embrace a prosecution of Obama for doing much worse. If assassinating US citizens is okay, what then isn’t? Are liberals, who quake at the idea of government infringement of their personal rights, so stupid as to not understand that life is pretty much the first right which must be protected before any others might be meaningful?
All things considered, Obama better win in November, or he’s apt to have a lot of explaining to do. As all eyes are now focused on economic performance, and it’s been, and it’s apt to continue to be, dismal, it would not surprise to see some sort of diversionary tactic, some sort of contrived existential crisis, employed to ensure Obama’s reelection. If the alternative might be jail, winning a reelection bid becomes something of a do or die proposition.