An Ethics Breach That Matters: Betrayal Of The Rule Of Law And Democracy

In the endless Obamacare Ethics Train Wreck, the trains may be our democracy, and the Rule of Law.

In the endless Obamacare Ethics Train Wreck, the trains may be our democracy, and the Rule of Law.

The consensus among objective legal observers is that President Obama’s unilateral amendments to a bill passed by Congress and signed by him into law exceed his constitutional authority, are illegal, and violate his oath to “preserve, protect and defend the Constitution of the United States.” Worse, they create a precedent that endangers the nation’s freedom,  as protected by the rule of law and the system of checks and balances, by laying the foundation for more obtrusive and dictatorial acts by future Presidents, who are sure to notice that the negative consequences of this blatantly unconstitutional act were nil. The President and the executive branch shares responsibility for this dangerous and irresponsible display of autocratic lawmaking with both houses of Congress and both political parties, none of which have demonstrated either the integrity or the courage to oppose him, for varying reasons.

It is depressing and indeed disgusting that our successful democratic system of government  created out of the vision and sacrifices of so many men and women of character, ability and high ideals is being progressively undone by fecklessness, incompetence and political expediency. That, however, is the plot playing out on the national stage, and these are the perpetrators:

  • The President, furiously re-writing an incompetently written and negligently administered law to avoid political disaster, is ruling by fiat, ignoring the text of the law in issuing delays and changed provisions that properly require new legislation.
  • The Republican majority in Congress, charged, as are all our elected leaders, with defending the Constitution, is negligently and recklessly allowing this autocratic abomination to continue unchallenged. Why? Republicans see the President undertaking the same measures they shut down the government in part to achieve. They fear being called hypocritical if they oppose the President’s illegal efforts to do what they had previously demanded. They fear backlash, if they are accused of obstructing efforts to address weaknesses in the law that they had previously pointed to themselves. Republicans are correct in these fears, but if they were patriots, public servants and statesmen, it would not matter. If the public and the news media doesn’t understand that nothing is more important than maintaining the integrity of the Constitution and the system of checks and balances, then Congress’s duty is to weather the storm, stand for the rule of law, and educate them. Instead, it is allowing a democracy to be run like a dictatorship.
  • The Democratic majority in the Senate, which is honor bound to protect the integrity of our system of government, even when a violation of it happens to converge with Democratic interests, and yet will not. The best and most powerful way to curb executive lawlessness would be a bi-partisan Senate resolution authored by the President’s own party, and because that is the best and most powerful solution, Majority Leader Harry Reid is obligated to do it. But Senator Reid is a corrupt partisan hack. His fingerprints are all over the abysmal law the President’s illegal ad hoc amendments are designed to save, and because he possesses neither political courage nor integrity, he will remain inert.\
  • The incompetent news media, which has a duty to inform the public what is going on, why it is illegal, and why it poses a threat to democracy, will not and cannot do so. Most journalists long ago traded in their professionalism and ethical duties to become tools of government, even when that government is in full violation of the very document that allows a free press to exist. The few media protests against unilateral lawmaking—autocracy—by the Chief Executive can and are easily dismissed as those of partisan critics whose credibility was forfeited by earlier reflex criticism of less momentous acts, and further marginalized by a successful campaign to label all criticism of the first black President as presumptively racist.
  • The education system  has done an abysmal job of educating whole generations of citizens, with the consequence that civic literacy in the U.S. is at an all-time low. Rule of law? What’s that? What law? Doesn’t the President rule over us? Madason, Jefferson, Adam Smith and others warned that civic ignorance presented the greatest challenge to any democracy’s long term success.
  • Worst of all, the passive, ignorant, lazy and easily confused American public, standing complacent, mute and bewildered as its most precious possession, self-government, is being eroded in plain view. The public should be forcing their elected representatives to act, but most Americans simply don’t know what is going on, and won’t devote the energy to find out.

The irony is that this perfect storm of anti-democratic government has arisen, not out of diabolical schemeing by an aspiring dictator, but out of the desperate and futile efforts of an amateurish and inept leader to hide the failures of his administration and his inability to operate successfully within the same Constitution that all of his predecessors accepted and coped with. This, aided and abetted by the unprincipled and craven leadership in both parties, a politicized news media and a disengaged electorate, is paving the way for the aspiring dictators to come. It is precisely the dire scenario posed by Sir Thomas More in “A Man For All Seasons” come to life, but in our own country:

 “What would you do? Cut a great road through the law to get after the Devil?… And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

Our Constitution exists to keep those winds from blowing our democracy over, and Barack Obama is cutting a great road through it, not to get after the Devil, but to try to save Obamacare. How sad. Ben Franklin said, famously and ominously, that we had a Republic, if we can keep it. I fear that his implied question is finally getting its answer.


Sources: Reuters, Volokh

53 thoughts on “An Ethics Breach That Matters: Betrayal Of The Rule Of Law And Democracy

  1. I think we’ve reached a point where the average citizen is so ignorant, they don’t know what they don’t know. It’s still their fault, but even in this age of available information, there is so much dis-information that sometimes it’s hard to shovel through. And as legitimate role models become more and more scarce, I have a hard time laying blame. Perhaps that’s overly cynical.

    • I don’t have a hard time laying blame. The blame is there to be seen clearly by those who have the courage to see it. I don’t believe in “vast conspiracies” but if I did a conspiracy wouldn’t be more effective than the effects of all the parties mentioned above. And, knowing that it won’t be greeted with enthusiasm, I’ll add the pernicious and effective cries of raaaacism and the war on women and the agenda of the extremist LGBT movement that innoculate some people against being called on their bullshit and keep people from focusing on what’s going on under their noses. If we could find a gay black liberal woman academic to run for president it would go even faster. She would be untouchable.

  2. I was listening to Jamie Dupree the other day, and his take on this scenario was that Obama’s recent actions in regard to ACA *may* be legal. He pointed out that the law’s verbiage leaves enough wiggle room for delaying certain provisions and making other off the cuff changes after the fact.

    For example, the law might state “After December 31st, 2013 Provisions X, Y and Z will be in effect”, or something similar. Now, you might read that and think “Hm… so those provisions become effective on January 1st, 2014?”. Not necessarily… as it doesn’t say WHEN after. X, Y or Z could be delayed until November 30th in the year Ten Million and still theoretically be within the letter of the law.

    Again, goes to point that the whole LAW is unethical.

    • That’s a minority view, as far as I can determine. In a court case, a lawyer will find a way to defend it—Nixon was a great lawyer, and his position was that if a President does something, it can’t be illegal. The employer mandate is not one of those provisions where there is such wiggle room, is what most analysts believe. Dupree’s not a lawyer, and I wouldn’t regard him as a dissenting expert. The law profs on Volokh are almost in agreement on this, which is rare.

      Of course, ACA is just the latest example. Obama’s adoption of Bush’s “signing statement” dodge (which Obama condemned while running in 2008) and the administration’s refusal to defend DOMA in court, whatever one’s feelings about that law, are in the same, lawless vein.

      • In a similar vein, California showed that the voter initiative is dead.

        If the voters get something on the ballot and it wins at the ballot box, the state can simply not enforce it, or refuse to defend it in court, and it goes away because no one has standing to fill in for the government or induce enforcement.

          • I think “voter initiative” was accommodated by the Founding Fathers, when they prohibited the government from passing laws regarding the right to petition for redress of grievances, also when they established a system for the voters to get rid of the people that weren’t passing the laws they wanted every 2 years.

            But laws coming directly from the people terrified the Founders just as much as laws coming directly from a king or directly from anything for that matter. Which is why they established a system that would gum up as often as possible, to ideally ensure that an proposal is deliberated, deliberated, deliberated and deliberated yet again.

        • If the voters of California feel their wishes are not being addressed, and generalized, if the voters of America feel their views are not being addressed, it’s because 1 representative per 700,000+ citizens is NOT a representative democracy (in the nation’s case) and 1 rep per 475,000 citizens is not representative in California’s case.

      • Hi Jack, thanks for the reply. RE: Dupree….I’m not a lawyer, either, so I’m not really trying to debate this. I guess I’m a little confused – how is there no wiggle room on the mandate? Is there some sort of governing effect here that states, in these scenarios, that “after date X” means, literally “12:00:01AM on the day after date X”? And, if that is truly the case, why doesn’t it simply say that?

        I do computer consulting work and work off written contract agreements. The requirements of both parties are laid out very specifically. Moreover, we are both held to certain agreements within the term of the contract: Implementation dates are a good example. We don’t say “the term of the contract starts after date X” We state “the term of the contract starts ON date X”. Same thing for the end date. Same thing for project implementation dates, where there is not only a “go live” date, we have various milestones that have to be reached, otherwise the effort is in arrears.

        • I think you are parsing the wording wrong. After date X, Y will be in effect means that at any date after X, Y is in effect. It’s not saying it will start taking affect at some specifc time afterwards, but that it covers all times after that.

  3. ◾Worst of all, the passive, ignorant, lazy and easily confused American public, standing complacent, mute and bewildered as its most precious possession, self-government, is being eroded in plain view.

    Give them bread and circuses and they shall remain ignorant and compliant.

  4. If you would have told me when I was 18 that our country was going down this path I would have assumed you were crazy,
    Now, not a day goes by without me shaking my head in disbelief.

  5. Jack,

    Checks and balances? Representative democracy? Reduction of power?

    You sound like those idiot Founders on the wrong side of history. Let’s get on board the future train, where glorious enlightened rulers know what’s best for us serfs.

  6. “Lazy” is a term thrown about a lot lately and I think unfairly. Living in the US today as compared to 50 years ago is a lot more challenging day-to-day. Of course Americans have a duty to police their elected representatives, but can you really fault them when you look at what else is on their plates? The middle class essentially is gone and this has turned us into a nation of poor people and rich people (and the gap between the mildly rich like me and the 1 percenters is staggering). The poor are spending every second of every day trying to figure out how to provide for their families. And even rich people worry about this. I have trouble sleeping at night trying to figure out how to get my kids a decent education — K through college. We’re asked to be our own teachers, estate planners (because companies who offer pensions have gone the way of the dinosaur), health care providers, sometimes doctors (how many people do you know who’ve had to educate their physicians?), grow our own food, cook our own food, take care of elderly parents, AND try to do everything on top of BOTH parents holding down 9 to 5 jobs. (And yes, single income families do exist but that’s harder to do now in most markets.) And, those jobs are tougher to come by and tougher to handle given companies’ desire to trim head count and add additional duties to the employees that they are keeping.

    So, to the extent you want to ration blame, please don’t heap as much on the average citizen. The best of us stay educated on the issues and will show up to vote. But our choices are dismal at the polling booth and the entire system is controlled by big money — including the candidates who have been put forward in the first place. I don’t have time to sharpen my pitchfork and plan the revolution with Scott.

      • No, Beth has a point, to a degree, but I suspect she doesn’t like the “why”…

        We bitch about the low information voter, and to a point we are right to do so… You see, most folks aren’t like us. Hell, almost none are.

        They don’t watch politics and the legislature and all that associated stuff every day. A lot of people never give more than the most passing of thought to politics, and who they voted for, and what the person who won the local Congressional race is doing or saying or how they are voting. They only start paying attention a couple of weeks before each election, they read a bit about the candidates, they maybe watch a debate, they vote, and the cycle repeats itself. These are the people who politicians pander to, and why we have elected such roaring incompetents to office.

        But you know what? For some 200+ years that was a perfectly reasonable way to live your life, and in fact was the rational way to act for people. People haves shit to do, man – they had jobs to work and debts to pay and families to provide for and damnit, they were too busy to worry about every little God Damn Thing, and if they needed to know about something there were reporters willing to dig at the story and inform the people.

        And this was OK, because the Federal Government did so fucking little – and was involved in such a small part of your life – that it didn’t matter that some whack-job moron from Georgia thinks Guam might tip over, or that some thundering fuckwit from Texas can’t tell the difference between “the Moon” and “Mars”, or that some ignorant cock-stain thinks a woman’s body can shut down and avoid pregnancy during rape. It didn’t matter because that parade of failure can’t actually do anything that affects you – if some Congressman from Bumblefuck doesn’t like abortion it doesn’t matter because the government can do anything about it because your state decides on it’s own, thank you very much.

        But now, with the government so expansive and so deeply ingrained in every single aspect of your life, it is possible that the ignorant fucking opinion of some assclown (who only won their seat because their opponent got caught balls-deep in a poodle 3 days before the election) might actually have an impact on your life.

        It isn’t helped that the media as a whole absolutely slants in one direction, and thus is either unwilling or unable to hold the government accountable and properly bring items to the attention of the public, not only informing the public about the issue, but explaining it in enough detail that people can actually grasp it and know what has happened, who is involved, and why it is important.

        People are “low-information” because quite frankly, that is what we are trained to be, and we used to have a system where that was OK.

        It isn’t OK anymore, but people still have lives to lead, and even if they had the time or background knowledge to become informed they simply aren’t aware yet that they need to be doing so.

        How does that get fixed? Well, I honestly don’t think it can be, barring some massive event (like the dollar absolutely and completely tanking, import goods ceasing to exist, and you suddenly being able to pay off your mortgage for the cost of a nice hat) that shocks us into attentiveness.

        So, honestly, fuck it. Let it burn or, failing that, raise those flags and sharpen those knives.

        And Beth, I have spare pitchforks, and the plans were made a while ago. I just need cannon fodder people willing to die so that I might gain power fight beside me.

        • Or to put it another way, we once could trust, because the incompetent and corrupt couldn’t hurt us very much, because we more or less controlled our own fates. I think that’s right. We’re still complacent, and the groundrules have changed so we can’t afford to be.

          I think that’s fixable. Understanding the problem is the first step.

          • That’s BS. Some of the worst legislation we have seen is at the state level. Don’t forget that VA was the state that brought us the vaginal probe idea. And that’s one example in a million.

            I have a close friend who is a major player in a State Tea Party. Obviously we disagree on politics, but I applauded him for getting involved and rising so quickly. He shared with me recently that he is equally disillusioned about what is happening in State politics. This is all about money folks — don’t be fooled that one corrupt politician is better than another just because he might share the same zip code.

              • “[T]he incompetent and corrupt couldn’t hurt us very much.”

                Of course they could and they did. 2000 years of recorded history proves that they did.

                • I wasn’t aware the US has been around that long.

                  Scott’s point is that the US government didn’t intrude on most of our lives very much or often compared to almost anyone else, especially if we weren’t dependent on the government. You could start a business, buy what you wanted, sell what you made, and keep what you earned. Unless they got us into wars or crashed the economy, the middle class didn’t have to pay much attention, and most people still don’t. Now virtually every level of all governments are run by idiots, ideologues, hacks and fools, and that can’t make anything work right. It’s time to start paying attention to the vcalues and abilities of who we put in charge.

                  • Please be consistent. You bring up world demographics in your point but then criticize me when I reference world politics.

                    “Now virtually every level of all governments are run by idiots, ideologues, hacks and fools, and that can’t make anything work right. It’s time to start paying attention to the values and abilities of who we put in charge.” I agree with everything in those statements. But, if you think we can let corporations make all the decisions (we’re not talking mom & pop shops anymore) than that is even more insane. We don’t elect them, we can’t control them, and the only interest they have is in the almighty dollar. If you disagree, we can take a day trip to WV together — but I’ll be bringing bottled water to drink. I don’t know about you…..

                    • Come on Beth, the post and comments are clearly about the US government and public, and the world reference isfor contrast. Nothing inconsistent at all.

                      Corporations are far more responsive and accountable than the government. No more trustworthy, I agree, but more responsive and trustworthy. Also smarter.

            • So? What Virginia does has no bearing on what California does, or Texas, or any other state. That is why we have 50 states – so they can play around with what they want to do and see what works best for them. At least they don’t have people from New York forcing bad laws on them that way.

              • If you live in Virginia, it would affect you though. And it’s not like you can vote with your feet if it means losing your employment and your home.

                • Though you can vote with your feet far more easily than you can if it is a law that effects the entire country.

                  Just because your state passes a law you don’t like doesn’t mean that democracy has failed, and just because you must labor under a disliked statute doesn’t mean that I should have to do so as well.

        • Nah, I’m too good for cannon fodder. I actually KNOW how to raise crops and am an ace at animal husbandry — skills you need after society’s collapse. You shouldn’t kill off the 4-H gals just because you hate their politics. Plus, my relatives are the ones with the bunkers you might need down the road.

        • I actually agree on much of this — but for the blame on the FEDERAL government. Government is government. We are the richest and most successful nation on the planet — that means that evil politicians will exploit it as much as possible. It can happen at the State or Federal level, and I think the odds of the media doing a better job of covering 50 corrupt governments is slim to none. History bears this out. The rich and powerful will do what they do while the peasants tend the fields.

    • “The middle class essentially is gone and this has turned us into a nation of poor people and rich people.” That’s baloney, Beth. What we call “poor people” have internet, TV, cars and air conditioning. What we call “poor” most of the world calls “not doing badly at all.” We have a gigantic middle class that wants to call themselves poor because the super rich have gotten super richer. Who cares how much richer someone else is? Money is not a zero sum game. That’s a pretty dishonest class warfare talking point to throw around.

        • That’s fair — unless you know where that person got the smartphone. Most of the DC charities send out a plea for used smartphones and blackberries once a year. I’ve donated my old ones in the past. And the plans are often paid for my donors to abuse centers, shelters (especially families with kids), churches, etc. as a way to keep track of those in need.

          • I don’t think the panhandler had to be able to AFFORD his own smartphone for the observation to be fair. Heck, even an old brick of a Nokia paid for by a shelter is absolutely inconceivable as something a “poor” person would have most places. Does that make this guy not poor, or not in need of help? No… but it sure does show how standards differ and, as the sarge says… we’re winning.

            • But consider that payphones are non-existent now. The “only” way for people to communicate is through a land line or a cell phone. And if we aren’t paying for those cell phones through tax dollars, should we really get bent out of shape about it?

              • I didn’t intend to come across as bent out of shape, but merely having some perspective. Sure, cell phones are the only reasonable way for a homeless person to communicate via phone- but the idea that very poor people are worrying about telecommunications means that the poor in the US are doing pretty OK compared to the poor in a lot of places.

                Of course we shouldn’t leave them totally adrift just because they aren’t the worst off in the world, but it’s fair to point out that in the overall scheme of humanity a homeless American man with a cell phone is doing not so very shabby.

      • Jack, we are talking about US demographics, not international demographics. Yes, I am richer than 99% of the population in Bangladesh and I am grateful and obviously aware of that. But if you think that Americans are better off now than they were in previous generations, than you have ignored every single study done on this topic. An easy example is higher education. College — even a state run college — is unattainable right now by the middle class. Educational increases are far outstripping salary increases. Everyone — every single economist — agrees with that. Now, we could argue about why this is happening, but the facts are there.

        So, we have a populace that is dumb, the likelihood of our children being even dumber, and all of the rust belt jobs have gone overseas — this is a recipe for disaster.

        I also find your “poor people” examples unconvincing. My internet costs $30 dollars a month (and there are cheaper plans out there) — my company reimburses me for that cost BTW. Now, assuming I wasn’t reimbursed, if I gave that up for the next 12 years, maybe I would have enough to pay for room & board for a semester when one child goes off to school. Of course, I wouldn’t be able to do my job so I’d get fired — and I also need my car (middle class families have owned cars since Ford started making them) to do my job and to take the kiddos to school. Or, I could move closer to public transit and increase my mortgage by $100,000 or so. Your TV example also doesn’t work because middle class families had TVs in the 50s. But you’re right! I could give up that expensive AC — that I run 4 months out of the year. Over the next 12 years, that savings will total about $9600. I don’t think that will pay for college in 2026. And, not being comfortable could affect my sleep, which would affect my work, could also affect my health…..

        • 1. If we were talking about the US, where did the “2000 years” come from?
          2. The working poor now are closer to the middle class of the US in the 50s than their relative equivalents in most of rest of the world today, including most of the first world.
          3. College? A higher % of the US public public has a college degree than ever before—not that it’s worth anything. Women and minorities have college degrees and advanced degrees far, far beyond what was the case 50 years ago.

          • 1.The 2000 years was an obvious reference — politics is politics. They are all crooks — it doesn’t matter if it’s US, Asian, or European politics. The latter two have at least 2000 years of recorded history.
            2. Again irrelevant. We are talking about income gaps between US citizens today and US citizens 50 years ago.
            3. Agreed, but has nothing to do with my economic point. Generally, the upper classes go to college — unless you are on scholarship. The key is wealth, not gender or race.

              • Right. “Some” — and has you mentioned, many of the degrees actually earned are worthless — as are some of the so-called colleges offering them. I’m talking about those kids who want to go to a legitimate university and earn a worthwhile 4 year-degree. That’s a dream for most people now.

            • I don’t think Jack was talking about income gaps, but overall level of wealth. Defining wealth levels in a relative way is a common trap for left wingers to fall into. Hence a facebook meme I saw recently complaining that the US was near the bottom of a list for child poverty… where it was defined as 50% of median. The term middle class is ill defined though.

              Wealth disparity is not, in and of itself, bad. If people feel bad because Bill Gates is filthy rich and they’re not, that indicates an error in how they evaluate their lot in life. It’s pure envy with no rational basis. If I could magically press a button to increase everyone’s purchasing power by their percentage rank (top 1% get a 100% increase, 50th percentile sees 50% increase, etc) I would. It would increase wealth disparity, but every single person would be better off in absolute terms.

  7. I really like this idea of “transition relief”. I think the federal government should serve as a model for other agencies.

    1. Yes, I realize my federal taxes were due last April but I am entitled to transition relief of another year because I didn’t know my divorce would have that much of an effect on my taxes. I will have my taxes in by next year.

    2. Yes, I realize I was doing 75mph in a school zone but I am entitled to transition relief of -50mph from the original 75mph because I just moved here a year ago. Watch me go through the speed zone again and make the appropriate adjustments please.

    3. Yes, I realize that you already graded my test and I received a 43 but I am entitled to transition relief of an extra 50 points because your test was poorly constructed. I reworded some of the essay questions. Please grade it again.

    4. Yes, I realize I told mom that I would be home before 12:00 AM but I am entitled to transition relief for the 5 hours I was late because I didn’t realize at the time that there would be seven kegs at the party. Don’t look at me. Talk to Obama.

  8. Here’s a short one.

    1. They all suck.
    2. They’re all narcissistic liars.
    3. The founders are rolling in their graves.
    4. The carefully drawn, and explicit, separation of powers is dying, and our Republic with it.
    5. And we are to blame, for being an ignorant, selfish, and uninformed electorate.

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