It’s a pity Kentucky clerk Kim Davis will never receive the thanks she deserves for teaching America to value the rule of law. Suddenly liberals, including nearly everyone who supports the lawless President Barack Obama, think government officials don’t have the right to ignore laws they disagree with, and should be punished for trying.
Davis is teaching them something their fantastically expensive college careers apparently didn’t stress properly. Every fellow member of her Democrat Party should chip in to buy her a cookie basket or something, assuming such gifts are permitted in the jail she occupies.
Upon hearing of Davis’ incarceration, I asked if the mayors of all those lawless “sanctuary cities” – whose officials did exactly what Davis did, except they decided to ignore duly enacted federal immigration law, not the Supreme Court’s new definition of marriage – would be following her into the clink. These sanctuary mayors are directly responsible for the deaths of innocent people, after all. Davis didn’t kill anybody.
One response to that question comes from law professor Jonathan Adler at the Washington Post, who either misses or proves the point by delivering an elegantly legalistic explanation for why some government officials can discard the law at their whim, but others must go to jail. The crux of Adler’s explanation is that Davis was violating state laws and lower court orders, shaped by the federal redefinition of marriage, while the sanctuary city mayors are refusing to enforce federal immigration laws that disagree with their ideology.
“Local jurisdictions that elect to become ‘sanctuary cities’ are taking the same legal step as the state and local law enforcement officers who refused to perform background checks for gun purchases,” Adler explains. “They are saying to the federal government, in effect, if you like this federal law so much, you enforce it yourself. Whatever one thinks of the policy merits in either case, they are legally the same.”
He distinguishes this from Davis, whose marriage license duties are “a function of state and local government,” administered “in conformance with the Constitution, as interpreted by federal courts, and the Supremacy Clause provides that state laws must yield when they conflict with federal law.”
That’s as good a description of an utterly insane system as anyone could provide.
Does it cover Obama’s politicized IRS deciding to undermine the Citizens United Supreme Court decision by abusing its authority to deny tax exemptions to political groups they disliked? How about those who issued same-sex marriage licenses before it was legal? However that scheme might have worked out, there never seemed to be any danger of those scofflaws going to jail for corrupting the functions of state and local government, in conformance with the Constitution, as interpreted by federal courts. Do the local officials who declared the intention to persecute a lawful business, Chick-fil-A restaurants, because of a political position expressed by one of the company’s executives have anything to worry about?
The rule of law is a virtue defined by the consistency of its exercise. When lawyers can pore over the system and conclude some officials can get away with disregarding the laws of our titanic central government, even though their negligence is a clear betrayal of their duties to their constituents – some of whom were raped and murdered as a result of that negligence – and the President can just make up the law as he goes along, while arms of the federal bureaucracy abuse their power to manipulate our very political system without consequence, but this one obscure functionary in Kentucky goes immediately into the slammer for her act of defiance, we can only conclude the rule of law is in horrible shape and we have a crisis on our hands.
That conclusion requires no support for what Kim Davis is doing, by the way.
She should have honored her principles by resigning. When she refused to do so, a solution that didn’t involve putting her in jail should have been worked out, but she can’t indefinitely halt the issuance of marriage licenses in her jurisdiction. I don’t think clerks should be taking the law into their own hands, but I also don’t think the Supreme Court should rewrite ObamaCare twice to keep it alive. I don’t think the President should be picking and choosing which laws he feels like obeying, or enforcing.
One of the many times he twisted the law to keep ObamaCare alive was that amazing moment, when his “if you like your plan, you can keep it” lie was exposed and millions of cancellation notices were dropping on Americans from coast to coast, that President Obama went on national television and told employers to ignore the Affordable Care Act for another year, to keep public anger in check. He even put it in writing. “The letter announcing this non-enforcement has no basis in law,” the Heritage Foundation’s legal analysts noted.
But that was evidently no problem for the people who think Kim Davis belongs in stir, absurdly casting aside their devotion to an extra-legal Presidency to briefly pretend that the Rule of Law is the most important thing in their lives, and while it can survive any number of presidential and bureaucratic assaults, it will collapse into dust if this clerk in Kentucky isn’t punished severely enough.
We all know what the real difference between these various cases of official lawlessness is: power. The ugly political genius of Barack Obama was realizing that most of the restraints on executive power boiled down to polite, gentlemanly agreements. He calculated that the only real consequences for pushing the envelope were media disapproval (not an issue in his case, no matter what he does), the occasional court defeat (and he’s had quite a few), punishment by angry voters at the next election (a possible consequence that can be managed by skilled politicians with hundreds of billions of dollars to spend on intimidation and vote-buying) or the dead letter of impeachment.
Obama’s view of the presidency, made very explicit after his 2014 midterm election drubbing, is dictatorship not limited but sanctified by elections: no matter how many laws he twists or ignores, he can’t really be a dictator, because he rules at the sufferance of voters who could have “fired” him in 2012. They didn’t, so his nearly unlimited coercive power was ratified for four more years. He is audibly and visibly frustrated by every suggestion that he presides over a branch of government equal to the legislature and judiciary.
Obama is the product of an ideology that views the Rule of Law as a sucker’s game, a rule meant to hamstring their adversaries, who foolishly take it seriously. That’s a major theme in Saul Alinsky’s highly influential Rules for Radicals. The totalitarian Left values power as the ability to transcend law – you’re not truly “powerful” if your ambitions are frustrated by piddly little rules and annoying duties to people you disagree with.
Every observer of the Left has seen that if they respect laws they disagree with at all, it’s only to target them as obstacles in need of destruction. The revere the idea of disobedience as a way to strip the moral legitimacy from law, until the targeted law withers away. They expect their adversaries to abandon all resistance and meekly submit to every legal decision that goes against them, while the Left wages endless war, year after year, against every Supreme Court decision and Constitutional amendment that thwarts their ambitions.
And they’re not sticklers for following legal procedure to change laws they disagree with.
They use judicial and executive fiat to get what they could never win on Capitol Hill. They don’t launch sincere efforts to amend the Constitution any more – they just undermine the parts they don’t like, declaring the Constitution a “living document” for the express purpose of choking the life out of it. The entire dismal immigration “debate” was rigged by ignoring the law and ushering millions of people across the border, then informing the American people there was nothing to debate.
Protest movements viewed favorably by the Left can ignore property laws, shut down cities, and even prevent ambulances from leaving hospitals… while movements they dislike are intimidated and harassed at every turn, ranging from bizarrely inflated fees for “security” at peaceful and tidy events, to accusations of incipient violence the group never actually engages in.
Buried beneath all of this degenerate madness is an excellent system for proposing, debating, passing, and implementing laws. We could tune it up, clear away the pollution created by the misfiring engine liberals spent the past half-century building, and get back to having a lawful republic populated by free and dignified citizens. We must understand that no system can rationally administer an irrational body of law, or support an unlimited burden of law.
One of the reasons we have so many laws is that their sheer volume, and internal contradictions, create lucrative opportunities for lawyers and politicians. Special exemptions from a mountain of confusing laws are an extremely valuable commodity, and politicians of both parties rake in a great deal of money and power by selling them. Complex and oppressive law puts too much power of discretion in the hands of officials, who become very difficult to monitor for abuses, or punish when those abuses are discovered.
Lawbreaking clerks in Kentucky go to jail. The most common “punishments” for even the most outrageous abuses in Washington are temporary reassignment, early retirement with full benefits, and paid administrative leave – the latter employed so often that complaints have been voiced about how much money it costs to “punish” all those miscreants with paid vacations.
By all means, let’s have a vigorous national discussion about the Rule of Law, the misbehavior of our elected officials, and the importance of duty as a restraint upon the ambitions of those with power. It can begin with Kim Davis, but it must not end with her.