March 17, 2016

DAVID BERNSTEIN: Re: Merrick Garland, it’s a bit late for the Obama administration and its supporters to appeal to constitutional norms requiring Senate consideration.

Second, as I describe in “Lawless,” the Obama administration, with its aggressive assertions of executive power (some of which, I should note, I would support on policy grounds), is in a poor position to appeal to constitutional norms. The administration showed a severe lack of respect for constitutional norms when, for example, contrary to decades of precedent that the Justice Department will defend any federal law with a plausible defense, it refused to defend the Defense of Marriage Act before the Supreme Court (after defending it a year earlier in the court of appeals!); when the administration forced Common Core standards on local education without anything resembling explicit congressional approval or even debate, based on an aggressive reading of vague existing law; when the administration unilaterally changed immigration policy via executive order, after Congress failed to pass legislation that would have accomplished similar ends; when the president has simply refused to enforce provisions of Obamacare that proved politically problematic; and, for that matter, when the president advocated for and signed perhaps the only major piece of American social legislation (Obamacare) that not only failed to win widespread bipartisan support, but also attracted not a single vote in either house of Congress from the other party. More generally, President Obama has repeatedly promised to try to circumvent Congress using any arguably legal means available, on the rather extra-constitutional grounds, contrary to the norms attendant to the separation of powers, that “we can’t wait” for Congress to pass legislation that the president favors.

No one forced the president to ignore preexisting constitutional norms to advance his political agenda. And it’s just a little too cute for his administration, heedless of constitutional norms in a variety of contexts, to appeal to them with regard to the Garland nomination.

When they hold the whip hand, norms and traditions are stuffy and outdated. When they don’t, it’s all “have you no decency, sir?”

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