Litigation is the absence of an agreement. Most often, it represents the failure of parties to see eye-to-eye on the facts or their implications. Other times, it is the favored tactic of bullies attempting to stare down their opponents or using their superior position to wear them down. Decent politics is often like the former. During the Obama litigation presidency, it is strictly the latter.
For President Barack Obama, politics is about winning the disagreement, not building consensus. We know why. His career as a community organizer was not an effort to work with others but strictly to inflame like-minded partisans. He always won speaking to his own – no broad consensus or leadership skills needed there.
When he voted "present" in the Illinois legislature, he didn't have to reach agreement with anyone, either. If fact, Mr. Obama has made a career of not reaching consensus with anyone. For his first act as President, he relied on the partisan House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid to pass a spending bill without a single concession to Republicans, let alone their approval. It was victory by force – not consensus or leadership.
Mr. Obama's ObamaCare approach was no different. In the face of public opposition – not to mention Senator Scott Brown's election victory – Mr. Obama again triumphed over disagreement. He didn't need votes from the other side. He just needed the votes of those Democrats already present.
When it came to global warming laws, unable to win in Congress, Mr. Obama settled out of Congress and used the EPA to claim his victory. Moving on to the next disagreement, the lawyer Mr. Obama has tried terrorists in courts and not in military tribunals – another form of getting his way without others' agreement.
Since the 2010-midterm elections, which cost Mr. Obama his consensus proof Congressional advantage, he has purely resorted to flouting the law. He has "governed" by executive order. No agreement with anyone or leadership is needed to use his pen to sign the papers his lawyers have drafted.
In fact, since becoming President, Mr. Obama has not undertaken a single effort at building consensus. Not one. For all the claims of partisanship made about President George W. Bush, Mr. Obama's immediate predecessor, for better or for worse, Mr. Bush had bipartisan support in several key legislative victories. Mr. Bush had Senator Edward Kennedy support one of his bills, The No Child Left Behind Act, and Senator Bernie Sanders support another, Medicare Part D.
Mr. Obama can make no such claim. There has been no consensus under Mr. Obama – a process which takes leadership. That is why Americans believe we are more divided today than four years ago, by a margin of 67%, compared to just 7% who think we are less divided (according to polling by Rasmussen Reports).
It should come as no surprise that the United States has reached a turning point under Mr. Obama: our biggest policy questions are being decided by the Courts as much as by Congress. Indeed, at this juncture, the Supreme Court has more of a say about the fate of ObamaCare than Congress – and now that House Speaker John Boehner has chosen to sue Mr. Obama, the Supreme Court may determine the fate of the Obama presidency as well.
But that is okay for the Litigation President. "So sue me," he says. He is comfortable with litigation where one side loses and one side wins. After all, his lawyers will do the work. He doesn't even have to be present.
Thomas G. Del Beccaro is a business attorney and the immediate past Chairman of the California Republican Party.