Many view this presidential election as a personality contest‚ but it’s really about the Constitution. Presidents are less about personality than policy.
Many view this presidential election as a contest of manners. The media spends its time debating the relative evils of statements made by Donald Trump or Hillary Clinton. What’s worse: saying a Gold Star mother “maybe…wasn’t allowed to have anything to say…it looked like she had nothing to say,” or saying that “you could put half of Trump’s supporters into … the basket of deplorables”?
Regardless of your answer, this election is about more than manners or a battle of personalities. The stakes go far beyond that. Much depends on whether the next president will do the following three things.
1. Preserve the Constitution
The Obama years have not been good for the separation of powers or for rule of law. At a spring 2011 Univision town hall, President Obama was pressured by a portion of his base to stop the deportation of young illegals via executive order. In response, Obama provided a helpful civics lesson:
“With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books … Congress passes the law. The executive branch’s job is to enforce and implement those laws … There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply, through executive order, ignore those congressional mandates would not conform with my appropriate role as president.”
About a year later, Obama chose to violate Congress’s “very clear” laws, chose not to “enforce and implement” those laws, and chose instead to undertake actions that did “not conform with” his “appropriate role as president.” His administration announced that it would no longer deport most illegals under the age of 30 who had entered the U.S. before adulthood. Republican presidential nominee Mitt Romney said almost nothing in response.
Two years later, Obama decided to take a second—even bigger—bite of this apple, unilaterally declaring that roughly 5 million illegal immigrants who are parents of citizens are exempt from deportation and even eligible for work permits. Congressional Republicans (and Democrats), whose own lawmaking powers had clearly been usurped, did almost nothing in response.
Around the same time, Obama lawlessly began to suspend or alter many parts of Obamacare. Asked whether his successor could similarly “pick and choose whether they’ll implement your law and keep it in place,” Obama offered a peculiar understanding of whom the Constitution empowers to change laws: “I didn’t simply choose to delay this on my own. This was in consultation with businesses all across the country.”
Perhaps most egregiously, Obama hid the effects of Obamacare’s Medicare Advantage cuts through his “Senior Swindle,” an $8 billion gambit through which, in the words of now-Senator Ben Sasse, his administration decided it could “simply make up the authority to make law and give itself the power of the purse to implement its new law.” To put that $8 billion in perspective—money that Obama effectively stole from the federal treasury and spent for his own political purposes—it equals the combined annual profits of the nation’s 10 largest insurance companies in 2008.
After seeking United Nations rather than congressional authorization to intervene in Libya, Obama overtly violated the War Powers Act. ABC News reported, “Experts say this is the first time an American president has defied the War Powers Resolution’s deadline for participation in combat operations without any concurrent steps by Congress to fund or otherwise authorize the role.”
Obama made three “recess” appointments to the National Labor Relations Board while the Senate was in session. He has ignored the welfare-reform law that President Clinton signed into effect, allowing states to strip the “work” out of “workfare.” He has refused to enforce federal marijuana laws.
All the while, Obama has appointed judges who share his own view of the law as malleable. His two Supreme Court appointees routinely substitute their own policy preferences for the plain meaning of the Constitution. The result is that fixed rule of law, the very foundation of our government, has given way to the arbitrary rule of man.
Although the individual justices’ votes were not publicly disclosed, Obama’s Supreme Court appointees “almost certainly” (to quote the New York Times) voted with President Clinton’s two appointees in ruling that Obama’s immigration actions were lawful. Because the four textualist (or more textualist) justices ruled that his actions were lawless, however, the Court split 4-4, and a lower court rebuke stood.
In short, Obama has served nearly eight years as the head of a movement that’s engaged in a deliberate assault on the rule of law, the separation of powers, and the Constitution. Hillary Clinton is now running to become the new head of that movement.
Trump has demonstrated an evident lack of familiarity with the Constitution. But he isn’t committed to undermining it, and has shown an instinctive fondness for traditional American ways. He says he would repeal Obama’s lawless executive actions on illegal immigration on day one and would appoint justices committed to applying the Constitution and laws as-written: not as they wish those were written.
Clinton has said she would expand Obama’s executive actions on illegal immigration. She was critical of the Court for not upholding those actions. And she has told voters that we need to appoint more judges who would vindicate such actions.
When it comes to preserving the Constitution, a key question remains: Which of the two candidates would more likely be checked by Congress or challenged by the press corps? Even if only out of self-interest, Congressional Democrats would stand up to Trump if he were to exceed his constitutional powers. Republicans would stand up to him as well. Clinton, meanwhile, could count on roughly the same degree of resistance that Obama has received from Republicans (little) and Democrats (none). As for reporters, the gusto with which they would cover either administration can be ascertained by their coverage of the presidential campaign.
2. Restore our Borders
According to the U.S. Census Bureau, immigrants made up 5.4 percent of America’s population in 1960, and that tally dipped to 4.7 percent in 1970. After 40-plus years of largely unchecked illegal immigration, that figure has now skyrocketed to 13.6 percent—nearly tripling—and it’s still rising. It has already surpassed the percentages reached during the great waves of immigration in 1880 and 1920. On its current trajectory, it will surpass the all-time mark set in 1890 within another eight years (see table 2). Yet Democrats and many prominent Republicans want to accelerate that trend.
A huge wave of illegal immigration clearly isn’t conducive to assimilation. This would be true even if Obama and his allies weren’t actively working against that time-honored goal. Indeed, the Obama administration doesn’t even like the term “assimilate” (“to bring into conformity with the customs, attitudes, etc., of…”), preferring “integration” (“to combine… ; desegregate”). In that spirit, the administration recently released a policy statement in which it laments the emphasis placed on teaching immigrant children to speak English.
My Hudson Institute colleague John Fonte writes that Obama “seeks to replace the traditional ethos of patriotic assimilation, which encouraged new immigrants to think of themselves as Americans first and foremost, with one that prioritizes ethnic, racial, and gender identities over a unifying national identity.” Fonte adds, “There is no doubt that Hillary Clinton would consolidate and expand this project of balkanization.”
Trump’s core issue, of course, is his opposition to open-borders immigration. Clinton, in contrast, says she would preserve and expand Obama’s unilateral executive actions. She says she “will introduce comprehensive immigration reform with a pathway to full and equal citizenship within her first 100 days in office” and would “demand that there be a vote in the House.” She has called for more than a sixfold increase in the number of Syrian refugees in the U.S. (from 10,000 to 65,000). She has “proposed an Office of Immigrant Affairs for the White House.”
She has positioned herself to the left of Obama on enforcement, saying that she will “stop the raids, stop the round-ups, stop the deporting of people who are living here doing their lives.” She has said, “I would not deport children. I do not want to deport family members, either.” And she wants to give illegal immigrants access to Obamacare, saying, “We should let families—regardless of immigration status—buy into the Affordable Care Act exchanges.”
3. Repeal Obamacare
Obama clearly considers his 2,400-page namesake to be the most important legislation of his presidency—which it is. It is the central legislative component of his project of “fundamentally transforming the United States of America.” Six years after its passage, it is also ripe for repeal, with more than 200 polls during Obama’s second term finding it to be unpopular, while only three have found it to be popular (according to Real Clear Politics). Good Obamacare alternatives, which would replace its edifice of coercion with a foundation of liberty, are available—including the House Republican’s plan.
Trump says, “We will repeal and replace disastrous Obamacare,” and he would presumably sign repeal-and-replacement legislation into law. Clinton says she would “defend and expand the Affordable Care Act,” while progressing further in the direction of a “single payer” government monopoly. She would do so by adding a “public option”—a government-run, government-subsidized plan—and making 55 the new age of eligibility for Medicare, the program that is already the greatest obstacle to our long-term fiscal solvency.
The fate of Obamacare will go a long way toward deciding whether we will be a nation of freedom and federalism, or a nation of centralized power and control. And the next few years will go a long way toward determining whether we remain a nation of settlers and pioneers who share a “political religion,” who welcome and assimilate those we freely invite across our borders, or whether we become a nation that cannot—or will not—police its own borders or laud its own ideals.
At the same time, the fate of our Constitution is increasingly at stake, as our entire structure of government largely hinges on having a president who—very much unlike Obama—will fulfill his or her duty to “take Care that the Laws be faithfully executed” and maintain his or her oath to “preserve” the Constitution.