Politics vs. The Rule of Law

Politics has many definitions. My personal favorite breaks the word down in its parts:

poly–many

tics–blood-sucking parasites

Yes, it is an old joke, but I love it so much I just cannot part from it.

Politics is ‘the art of the possible,’ according to Otto von Bismarck. David Easton calls it ‘the authoritative allocation of values’ within a society. No matter which definition you embrace, politics has always been about seeking advantage while, from the politician’s perspective, implementing his or her most desired outcomes. There are always compromises, and political views are often conditioned by civic virtue and concern for others outside ourselves, but political goals are about the attainment of a particular definition of the good as defined by political will.

While we live in a political system that allows leaders, particularly executives (presidents and governors), to play a large role in attaining their visions, our structure has built-in limitations on the use of power. Our form of government, which primarily grew out of the Western traditions of Greece, Rome, and Britain, restricts politicians by law. Our supreme law, of course, is the Constitution. This idea, of restraining those in power with some authority external to them, is ancient, but not as old as government itself. Magna Carta (1215) is an early example of defining legal boundaries over which even the sovereign King may not pass.

This is, at heart, the difference between politics and law. Law sets standards for treatment that ought to apply to everyone, regardless of circumstance. To use a crude, and imperfect, analogy, politics is the sport, while law is the rulebook. Regardless of political desires, we limit what is possible. To double-dribble, even in pursuit of the game winning basket, is against the rules. To be considered a nation of law, obedience and adherence must be near and dear to all our hearts, for if they are not, and that precious foundation erodes, we, as citizens, cannot be guaranteed fair, equal, and impartial treatment at the hands of government. We all want to know that when we win or lose, the rules were followed. We can know, then, that outcomes were not biased, but based on actual events. This system, of course, is never perfect. Umpires (or judges in this analogy) blow calls. That is different, however, from knowing that rules are simply being ignored or not applied to all of the game’s participants. At that point, even a win feels hollow, and losers are inconsolable.

Why does all of this matter? Over the past several weeks, we have seen at least three clear examples of the Obama Administration’s willingness to flout the rule of law in favor of its own will. First, we now know the Department of Justice worked with protest groups in Florida to pressure the judicial system to indict George Zimmerman, who was recently acquitted of murdering Trayvon Martin. In a nation that values the rule of law, the judicial officers in Florida would have been allowed to undertake an impartial inquiry, without government pressure, to make their own determination about Zimmerman’s legal fate. Regardless of what your perspective might be on the verdict, would anyone want to exchange places with Zimmerman and have the federal government pressuring local prosecutors in your own criminal matter? What? No volunteers?

Second, we know that President Obama has determined, unilaterally, to delay the employer mandate portion of the Affordable Care Act (ObamaCare). Instead of being implemented on Jan. 1, 2014, the requirement will go into effect some time in 2015, at least according to the White House. Just to be clear, the requirement forces all employers with 50 or more employees to provide health coverage to full-time workers. The economic impact of forcing companies to provide this significant benefit, if they do not already, could be significant, either through fewer jobs or higher prices. In this sense, it is probably wise to delay the implementation. However, this is simply not the President’s decision to make. Congress set the date, clearly, in the bill. This is President Obama, essentially, redrafting the legislation to suit his own purposes. Again, no matter the wisdom of the act or the delay itself, this smacks of a disrespect of our constitutional system and the separation of powers that are so fundamental to it.

Let’s put this in more practical terms. If you support universal health coverage, and you believe the employer mandate is one step on the road to achieving it, are you happy the President has assumed the discretion to just ignore the law for now? What does that do for those who would have had health coverage this year but now will wait, yet again? To travel across the ideological aisle, what if Congress, miraculously, outlawed abortion effective Dec. 31 of this year? Then, the President might say, ‘well, there are so many women in difficult circumstances who have not had time to adjust to this law. We have to give them more time and flexibility to prepare.’ Would that be suitable for you? Yeah, I didn’t think so.

Third, and finally, the recent Supreme Court decisions (U.S. v. Windsor and Hollingsworth v. Perry) involved executives (President Obama in Windsor and Jerry Brown in California) refusing to defend laws they swore to uphold and protect as part of their oaths of office. Obama and Brown refused to defend in Court the laws that restricted homosexual marriage. In doing so, both expressed their disapproval of the laws and helped to undermine their defense before the courts that heard the cases. The Defense of Marriage Act (1996), which defined marriage as between a man and a woman for purposes of federal benefits, was passed by Congress and signed by President Clinton, and California’s Proposition 8 (which limited marriage to a man and a woman within the state) was ratified by the states’ citizens as a constitutional amendment. In both cases, the laws were passed using the appropriate procedures and were to be enforced and defended by those who have an obligation to do so. Shirking that obligation is simply not a matter of discretion, it is a dereliction of duty.

By refusing to defend the laws in Court, Obama and Brown placed themselves above their obligations. They preferred to make a political point as opposed to fulfilling their own sworn duties. This is the triumph of politics over the law. In Hollingsworth, the Supreme Court ruled the private party that defended the law lacked standing before the Court, so no final verdict was reached. This means, at least as of now, Proposition 8 is no longer binding due to lower court decisions.

No one can force the President to agree with a law passed by his predecessors. Naturally, he can work to change the law. He can even appoint judges who would overturn the law when faced with that choice. These are political decisions. By refusing to defend the law in Court, the President refuses the mantle of his office. He disrespects not only the people who came before him, but the process we all rely upon to structure our political system.

Breaking the rules to win the game might feel fun or justified in the moment, so if you agree with the President’s choices, or you just like the President, you may be tempted to shrug and move along. If so, ask yourself a few simple questions. What happens when your guy leaves the White House? What happens when you wait to see if there is enough evidence to charge you for a crime? What about when you sit in a courtroom, awaiting a verdict? What if the Supreme Court examines a law you hold near and dear? At that point, at the moment of determination, you want to make sure the game is fair, that the rules have been followed, and that the deck is not stacked against you. In short, you want justice. To protect justice for yourself and your own causes, you must demand it for others, even when you disagree with them. This is the rule of law.

Posted in: Constitutional Law, Politics--General