When the Law Does Not Pay
Victor Davis Hanson
I do not think in California there is much law these days. We are regressing to the days of my grandfather’s stories. He used to relate to me a wild Central Valley circa 1900, when the sheriff was a day away. A neighbor down the road is now openly violating county zoning regulations by simply moving in immobile Winnebagos and creating a sort of ad hoc mobile home park — with jerry-rigged electricity, sewage, and water. “Restaurants” pop up around my farm along the side of the road, exempt from state and local inspection, apparently by parking a canteen, plopping down some plastic chairs, an awning, a porta-potty, a hose — and, presto, we have an eatery, with signs no less.
There are no dumping laws enforced in rural California: stopping the guy who throws out his garbage and a sofa is a money-loser; finding the guy in the Mercedes who uses his cell phone is a money-winner.
Yet most state lawlessness out here is predicated on priorities of enforcement and driven by public employee unions who see us the people in terms of “fees” and “fines” to feed their salaries, perhaps in the way the Thanksgiving chef eyes the roasting turkey amid hungry mouths.
AWOL in Washington
The new lawlessness at the federal level, however, is far more serious, because it is predicated on “social justice”: those deemed “in need” shall be exempt from the law; those “not in need” shall not.
The War Powers Resolution, like it or not, is the law of the land. It requires the president to notify Congress within 48 hours of committing armed forces to military action. Without an authorization of the use of military force or a declaration of war, the military cannot remain in combat abroad. That’s whyGeorge W. Bush went to Congress to authorize the Afghanistan and Iraq wars. During the heated rhetoric over the Iranian missile controversy, presidential and vice-presidential candidates Obama and Biden both expressed support for the resolution — apparently outraged that Bush might unilaterally bomb Iranwithout notifying a Senator like themselves.
So when we recently passed the 60-day limit after the initial and continual use of armed forces in Libya, why did not Obama seek permission from Congress?
Here the question is not the usual Obama hypocrisy that has seen him demagogue and damn Guantanamo, preventative detention, tribunals, renditions, the Patriot Act (just signed by a former critic via computerized autopenfrom the UK no less), and Predators — only to expand or embrace them all. Rather, the problem is a question of legality itself.
Is the War Powers Resolution the law of the land or not? Or are we to assume a progressive president is complying with both UN resolutions and an Arab League mandate, and therefore, as the good internationalist and Nobel laureate, sees no reason to consult, as American law requires, his own elected U.S. Congress — the latter a more suspect and reactionary body that does not enjoy the moral stature of the UN or the Arab League?
This disregard reminds us of the shake-down of BP, when the administration more or less declared by fiat that the demonized corporation had to cough up a $20 billion contingency clean-up fund — reminiscent of someone in the classical Athenian ekklesia or late 18th-century French assembly going after the better off by mere proclamation.
In that regard, an administration is sworn to uphold the established law; why, then, was the Defense of Marriage Act arbitrarily rendered null and void without legislative appeal, simply because it was considered illiberal by those now with executive power? Can President Obama and Attorney General Holder de facto declare a law unconstitutional and then not enforce it? Could a renegade conservative counterpart likewise declare Roe vs. Wade unconstitutional, and go after abortionists because it deemed them too liberal?
Or perhaps a better example is the bailout to Chrysler that was contingent upon reversing the contractual order of creditors, putting union members and retirees, contrary to law, to the front of the line, and those who held Chrysler debt to the rear. Was the logic something like the following spread-the-wealth notion: Bondholders are wealthier anyway and so have enough money already; union members — and Democratic stalwarts — actually do the work, and so have a moral claim to the money that trumps the superfluous legal right of the wealthy and powerful?
Or we might ponder the administrative decision by bureaucratic decree to stop a company like Boeingfrom opening a new airline production line in South Carolina, purportedly because it is a red, right-to-work state. Again, the logic is that companies cannot open factories where they wish, since they havemoral obligations that must stand above a mere legal notion of freedom of commerce and association.
Do we remember the voter intimidation case dropped against the Black Panthers — on the supposition that, given the history of the poll tax and Jim Crow voter discrimination, a little minor pushback is small potatoes?
Then we come to federal immigration law, or rather the deliberate effort to undermine it — in a fashion that goes well beyond the neglect of the law shown by previous administrations. The Obama administration is going to court, along with Mexico, to sue the state of Arizona that is trying to find ways to bolster a federal law that the administration will not enforce.
But it gets worse: the Obama administration tries to subvert states that wish to follow its own laws, but ignores cities that deliberately flaunt them by declaring themselves “sanctuary cities.” And consider entire states like California, whose Assembly just passed its own version of the “Dream Act” to provide millions in state funds to support illegal aliens at the state-run colleges and universities (at a time when the state is $15 billion short in balancing its annual budget, and, due to such a shortage of funds, must release 40,000 prisoners because of an inability to comply with a court order addressing overcrowding).
By now we know the accustomed logic. Demonize those who would seek to obey the law (e.g., they wish to arrest kids on their way to ice cream, they want alligators and moats in the Rio Grande, they are “enemies” that Latinos should “punish,” they have already “basically” finished their fence) and apotheosize those who break it (e.g., no mention of the 20,000-30,000 illegal alien felons in theCalifornia penal system).
A Slippery Slope
I find all this quite frightening for a variety of reasons. Once the moral high ground is claimed, then legality is constructed as some sort of reactionary impediment in the way of egalitarian “fairness.” The process works geometrically: each time the federal government rules by fiat instead of following the law — for reasons of humanitarianism abroad, ecological responsibility, worker fairness, gay rights, or empathy for the alien — it becomes a little bolder the next time.
The Left simply disregards its former purported role as guardians of constitutional law, and grows quiet, again on the apparent logic that the rare progressive presidency is simply too precious a commodity to endanger by maintaining any consistent criticism in the manner it once went after the Bush administration.
Imagine the reaction of the New York Times, NPR, or a Senator Obama had a President Palin decided to bomb Iran off and on for 70 days without congressional consultation, or had she decided to throw open the U.S. border to any from Europe who could fly in, or had she violated union contracts to favor junior Wall Street creditors, or had she demanded that an Al Gore organization plop down several million in a contingency fund for the damage it had done oil workers by obstructing efforts of companies to gain oil leases.
Where does this end, this effort by Ivy League lawyers and civil libertarians to substitute supposedly enlightened progressivism for purported reactionary law? We easily and rightly condemn the crime when the Right tries to overthrow legality in the cases of a Franco, Hitler, Greek colonels, or Pinochet, who are easily identified as autocrats and dictators openly subverting constitutional government. But the assault from the Left is more insidious, given that the miscreants do it in self-declared high-minded fashion for “us.” I think here of the frightening trial of Socrates in ancient Athens, the ascendency of the Jacobins during the French Revolution, or Hugo Chavez’s thuggery in Venezuela — not coups as much as overdue punishment of “them.”
Without the law, there is nothing.