The People's Will? What's That?

Bill Murchison

2/11/2014 12:01:00 AM - Bill Murchison

This isn't exactly a new topic, I regret to say.

For weeks there's been national conversation -- and the requisite component of shouting -- over the Obama White House's determination to stream the legislative music of its choice. Other people's choices? Those of the states, say, or even of Congress? Sorry, the president can't hear a word you're saying. He's rocking to his own beat.

Over just the last couple of days came two more instances of lofty Obaman disdain for others' views. Atty. Gen. Eric Holder led the way, pushing the federal government toward authoritative affirmation of a question the White House evidently believes to be settled -- to wit, whether gay marriage should be the law of the whole land.

As if in accompaniment, the Homeland Security and State departments undertook to redefine what Congress had supposed it meant in blocking the admission of terror supporters to the United States.

Well, you know -- the president promised in his State of the Union address to put his particular spin on circumstances through ordering particular things to happen, things Congress could not be coaxed into doing. We are accordingly to expect more and more executive orders and directives -- the czars called them ukases -- putting flesh, insofar as the White House can get by with it, on Obaman intentions.

The president's apologists argue that presidents have always issued such orders, as indeed they have, rarely, however, with the intention of sprinting ahead of legislative intent and the will of the people. Hamilton, in No. 70 of the Federalist Papers, argued that "Energy in the executive is a leading character in the definition of good government." An executive, all the same, executes; he doesn't legislate. He doesn't, as a rule, seek to short-circuit popular deliberations as expressed in laws.

Let us consider what our president is up to here. He wishes to affirm what he identifies as the right of gay people to wed. He has said so. But the country hasn't. As 2014 began, 17 states and the District of Columbia agreed, legislatively or under judicial coercion, with Obama. This meant the rest of the country -- 33 states, two thirds of the whole -- dissented, preferring to emphasize the historically normative understanding of marriage as the joining of man and woman.

To which Atty. Gen. Holder says, essentially, nyaaah, nyaaah, nyaaah! Holder, the government's chief legal officer, directs that the federal government will recognize same-sex marriages in federal settings such as prisons and courts; and will do so, what's more, even in states so backwards as to disagree with administration policy. "We're right; you're stupid" is the attorney general's position.

On terrorism, Congress deliberately used a broad brush in attempting to paint the portrait of a relatively safe America. No one who had supported terrorism could come here. Well, State and Homeland Security now think better of that formula. Now you're excused from suspicion if provided terrorism only "limited material support" or participated in "routine" social or commercial transactions. Whatever "routine" will mean for implementation purposes.

The government desires to help those whom Democratic Sen. Pat Leahy of Vermont describes as deserving refuges and asylum-seekers, contrasted with box-cutter-carrying variety. Always there is a need to draw intelligent distinctions between classes of folk. But by executive edict? And with the world more unsettled, perhaps, than in the past 10 years? What of Congress' intentions meanwhile? Do the people's elected representatives write laws for the entertainment of the executive branch or do duly enacted, duly passed, duly signed statutes enjoy useful immunity from the inspection of presidents and their henchpersons?

The administration's capacity for celebration of its own insights won't wear off, we must assume, pending Republican re-capture of the Senate this fall or the White House in 2016. This means hard times ahead for the good old separation-of-powers, checks-and-balances doctrine we used to credit with helping keep America free. At least we can talk about it again -- understanding the consequences of treating it like a musty memory of the constitutional convention, a device as dated as wigs and quill pens.