- - Friday, January 17, 2014


President Obama’s assault on the Constitution hit a restraining wall the other day. A federal appeals court struck down the administration’s attempt to impose new rules on the Internet, and the Supreme Court, based on questioning by the justices — not always a reliable guide to their intentions — appears likely to tell Mr. Obama that, as important as he is, he can’t make an end run around the Constitution to appoint certain senior officials in the executive branch.

The U.S. Circuit Court of Appeals for the District of Columbia ruled that the Federal Communications Commission does not have the authority to require Internet service providers to implement the commission’s “Net Neutrality” scheme. “Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers,” the court said, “the [1996] Communications Act expressly prohibits the Commission from nonetheless regulating them as such.” If the Obama administration wants the classification of Internet service providers changed, it must persuade Congress to do it. The president can’t just change the law himself, which he appears to be setting out to do.

The president’s week didn’t get any better at the Supreme Court, where the justices seem to be about to strike his attempt to pack executive branch agencies without congressional approval by declaring that Congress is “in recess” even if Congress says it isn’t. Even the liberal justices appeared to be unsympathetic to the administration’s argument that “congressional intransigence” is enough to empower the president to bypass the confirmation process. Justice Elena Kagan, who was appointed to the court by Mr. Obama, tartly told the president’s lawyers that “it is the Senate’s role to determine whether they’re in recess.” Justice Samuel Alito, in his needed tutorial on the Constitution, told Solicitor General Donald Verrilli that he was “making a very, very aggressive argument in favor of executive power.”

Despite the rebukes, the president continues to govern as if there’s no pesky Constitution in his way. Mr. Obama continues his threat to impose rules and regulations through executive fiat, rather than the inconvenience of conciliation and compromise. On the very day the courts demonstrated the clipper for the president’s wings, he boasted that “we are not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help that they need. I’ve got a pen, and I’ve got a phone, and I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward.”

Those are talking points that might make his disciples throw their hats (if any) in the air, but run counter to two centuries of American law and procedure. In the early 1990s, when President Clinton first proposed his version of health care reform, Sen. Daniel Patrick Moynihan of New York, a Democrat, observed that such a sweeping change of the familiar would require a broad consensus to succeed. Mr. Obama ignored Mr. Moynihan’s wise counsel, and enacted Obamacare on a strict partisan vote, with no Republican support. Now the president and his party must defend an unpopular law doomed to failure.

The genius of the Founding Fathers was to establish a government that grinds slowly but exceedingly fine, and genuine accomplishments require a bipartisan consensus to succeed. Short-circuiting the system is a recipe for failure. This president, still enamored by his own peculiar smarts, continues to learn the hard way.

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