On Friday, Melinda Henneberger had an article at the Washington Post entitled “How the government could resist President Trump’s orders.”
Paul Mirengoff posted a nice treatment of it at Power Line on 11 September. Henneberger’s case is not at all far-fetched; bureaucrats and the media have made an art of “resisting presidents” (Republican presidents, that is) in the last few decades, and Mirengoff reminds us of that.
Resisting a Republican president has never been a problem for Washington bureaucrats. They were doing it when I worked in summer jobs for the government during the Nixon administration. They did it at the EPA during the Reagan administration, as Henneberger recounts. The Civil Rights Division of the Justice Department did it during the George W. Bush administration, to cite a more recent example.
The Washington Post plays a key role in the resistance. It screams bloody murder when appointees of popularly elected Republican presidents insist on implementing the policies of the nation’s chief executive over the objections of liberal bureaucrats. On the pages of the Post, “political people” are perpetually bullying “dedicated career public servants” during Republican administrations.
I have no doubt Henneberger’s outline is an accurate one, or that entrenched progressive-left bureaucrats will mount a “resistance,” aided and abetted by the mainstream media.
But I wouldn’t put money on the progressive-left bureaucracy this time. The reason is as simple as it is hard for our old-consensus establishment to see. The reason is that the progressive-left bureaucracy is the entity that corrupts and distorts the rule of law, and by that means oppresses the people.
Here is the sequence of argument that matters. It’s a short passage in Henneberger’s piece:
Washington has some pretty high walls in place, too, and electric fences that might shock any newcomer naive enough to believe Trump’s line about “criminal aliens”: that on “Day One, my first hour in office, those people are gone.” In a real sense, this town exists to serve the liberal, constitutional order, and President Trump would face fierce and sustained resistance to his “because I say so” threats to that order — not only from the other party but from his own, and from the nonpartisan civil servants who run the government day to day.
Now, Paul Mirengoff takes issue with the silly assertion that the civil servants are “nonpartisan.” They aren’t, of course.
But the more important point is the larger one. The bureaucracy of Washington, D.C. does not exist to serve the liberal, constitutional order, in any sense that has an actually “constitutional” meaning today.
That’s the whole point of voters flocking to Trump, and rejecting all the more mainstream Republican candidates – even [score]Ted Cruz[/score].
Look at just the issue Henneberger uses as an illustration: criminal aliens. The presence of criminal aliens in America has come about through the opposite of adhering to a “liberal, constitutional order.”
Horrors: Trump might actually enforce the law
Trump proposes to enforce our laws. That’s the ironic, even humorous aspect of this whole thing.
We have all the right laws on the books to keep those criminal aliens out, but the progressive bureaucracy has cooperated closely with Obama in violating the intent of our actual laws. (To be clear, moreover, presidents of both parties have contributed to this aggregate, decades-long violation.)
The same observation can be made about many of the activities undertaken by other agencies as well, such as the EPA, the EEOC, the IRS, and the Departments of Justice, Education, Homeland Security, and the Interior.
It’s turning the world upside down, to suggest that if Trump wants to enforce the actual laws we have passed, through due, constitutional process, it would be a blow for “liberal, constitutional order” to resist him.
A good 80% of the civil service establishment in Washington has its origins in extra-constitutional progressivism. It exists partly because Congress gave up fighting the growth of the federal government by the middle of the 20th century, and partly because, once the departments and agencies were put in place, all but two presidents in the last 100 years presided over a long-term trend of unchecked mission creep and political initiative within them. (The two presidents bucking the trend were Coolidge and Reagan.)
And sure, as Mirengoff agrees, this bureaucracy – and its Amen corner in the media – will fight Trump tooth and nail.
The people are waking up – to the un-constitutionalism of progressive overreach
But the reason the 2016 election year is such an amazingly different one is the reason the bureaucracy won’t necessarily win. Too many of the voters have awoken now to the basic truth that our conventional politics is no longer the politics of a “liberal, constitutional order.” They don’t buy the canard that the Washington establishment wears that mantle.
Of course I think it’s a bad thing, for a potential president to blurt out that he’s going to take unilateral action on matters of domestic policy. But that’s why I’ve been thinking it was bad for Obama to do that very thing, in an egregious and unconstitutional manner, for the last seven-odd years, and why I think it was a bad thing for previous presidents like Clinton, Carter, Nixon, FDR, Hoover, and Wilson to do it.
What those presidents did, and what our big federal bureaucracies now collude in and foment, are not the manifestations of a “liberal, constitutional order.”
This is why voters are so frustrated with the old-consensus Republican establishment. That establishment looks at the exercise of unchecked bureaucratic power over the people, and doesn’t see a problem there vis-à-vis the liberal, constitutional order. The Republicans are willing to let progressives own the argument, and proclaim that the federal leviathan that weaponizes government against the people is the “constitutional” idea that we owe our fealty to.
Yet in reality, it’s the exact opposite. Little of the leviathan, as the people now encounter it, can claim to have been instituted by consensual majorities voting on declared intent. Most of it has grown to what it is through bureaucratic metastasis, dubious court decisions, and often-obscure sue-and-settle precedents.
Even watershed bills like the National Industrial Recovery Act of 1933, the Civil Rights Act of 1964, or the Clean Air act of 1970, which did come to actual votes, had to disavow the long-term intentions of their most urgent proponents in order to be passed. And even though they were written to – ostensibly – conform with constitutional limitations on the federal government, they didn’t survive all the court challenges to them on that basis.
But that didn’t matter. Once the agencies chartered by those Acts were in place, it didn’t really matter what the courts had said. The passage of time desensitized Congress as well as the people to the operation of those numerous agencies. In the end, what was important was establishing that the agencies could be chartered to hold the people perpetually at risk – a risk to be defined later.
Some legislation, meanwhile, like Obamacare in 2010, had to be “passed” by legislative sleight-of-hand, because it was so wildly unpopular. Besides exceeding any charter the Constitution reasonably confers on the federal government, it wasn’t even the will of the people.
None of this is properly a feature of our “liberal, constitutional order.”
Yet all Democrats, far too many Republicans, and most of the media are urgently determined to defend this state of politics as the “liberal, constitutional order” we are supposed to salute and obey.
I don’t view the prospect of executive overreach by Trump with any more enthusiasm than I view the executive overreach we’ve been living under for a long time now. On that, I can agree with the #NeverTrump contingent. But continuing the political conventions of the last 25 (or 50, or 100) years is not better. All it means for the American people is greater and greater weaponization of government against them. In sober fact, Trump is not a scarier prospect than that. If you can’t see that, you don’t have the eyes of liberty yourself anymore.