Our government is too big for the rule of law

George Will considers the concept of “executive discretion,” and President Obama’s abuse of it, arriving at the conclusion that our government has grown to the point that strict adherence to the rule of law is effectively impossible – a condition he certainly does not endorse:

The sprawl of the modern administrative state requires vast delegations of powers, often indistinguishable from legislative powers, to an executive branch whose scale defies even adequate congressional oversight. Fortunately, in the Newtonian physics of our constitutional system, wherein rivalries among the three branches are supposed to trend toward equilibrium, actions often produce equal and opposite reactions. Obama’s aggressive assertions of executive discretion are provoking countervailing attention to constitutional proprieties. His departures from the norms proper to the take care clause may yet cause Congress to take better care of its prerogatives.

I confess I’m having a hard time seeing that Newtonian physics in action myself.  What “countervailing attention to constitutional proprieties” is Obama’s abuse of executive power provoking?  Does anyone see any real sign that Congress is planning to “take better care of its prerogatives” any time soon?  

In a healthy constitutional environment, Congress would be looking after those prerogatives no matter which party controlled each house.  Democrat Senators would naturally cut a lot more slack for a Democrat President, but they wouldn’t actively collude in the abandonment of their prerogatives, as Harry Reid’s Senate has.  There have been times in the past when Congress stood on principle against executive overreach from a nominally friendly President, but it’s hard to find many examples of it now.  For that matter, the Republican leadership isn’t exactly leaping to the battlements and defending the separation of powers.  They complain about it from time to time, but nothing really happens.

Citing the work of Professor Zachary Price, Will observes that when the body of law grows enormously complex, there simply aren’t enough prosecutorial and regulatory resources available to enforce it evenly.  That’s a sobering thought – not even the titanic regulatory apparatus of the Obama era has enough manpower to handle all the regulations they could be enforcing.

There’s something inherently tyrannical and capricious about a government that passes far more laws than it can possibly enforce.  Caprice is exactly what we should be avoiding; it is, in essence, what the American Revolution was fought against.  Not everyone who fought the Revolution was unalterably opposed to the concept of a monarchy and Parliament; there was considerable enthusiasm for crowning George Washington a king when the war was over.  Conversely, the Founders worried at great length that even the most carefully elected republican government could be abusive.  The real deal-breaker for the Colonies was the notion of law imposed without representation or accountability, by people (not just the King, but parliamentary representatives) who didn’t have any real connection to the Colonies.  They didn’t pay the taxes they demanded, or live under the laws they imposed.

What could be worse than a government that creates more laws than even the most cooperative citizen can obey, or even the largest agency can enforce?  What you end up with is not further law, but seizures of power.  It’s manifestly obvious that’s what ObamaCare is.  It changes at the whimsy of the executive, based on nakedly political considerations.  There are people who made expensive, life-altering decisions based on the mandates Obama just waived.  His attitude toward ObamaCare is that he has, permanently, taken power over the insurance industry away from both the private sector and Congress; he’ll write the “law” as he goes, and we will be made to obey it.  


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