With the Obama Administration in its sixth year and with Administration opponents leveling charges of “lawlessness”, it is tempting to view this as just more partisan sniping from predictably partisan people. However, with the economy seemingly on the mend, “lawlessness” as an issue is easily seen as a distraction from what is really important (economic growth). But the truth of the matter is that “lawlessness”, especially when it involves the government, is even more important than a single jobs report or GDP number.
The first problem with confronting supposed lawlessness of the Administration is that many don’t see it this way. They see a President confronting what they regard to be unprecedented opposition from the opposing political party, and being forced to take action to solve pressing problems. Some concede that perhaps Obama is going too far with some of his actions, but that is usually excused by the hardened political opposition that Obama faces.
What these defenders of certain questionable (from a legal perspective) actions of the Administration fail to take into account is that legal stability is a prerequisite for the economic strength that America has historically had. The questionable actions of the Obama administration didn’t begin with unilaterally (and illegally) suspending controversial parts of Obamacare, or his questionably legal executive actions on immigration, but rather his action during the GM bankruptcy which overthrew a couple of centuries of bankruptcy law which says that first priority creditors get paid in full before second priority creditors get paid anything. In the negotiations, Obama used the power of government to force first priority creditors to accept 29 cents on the dollar while second priority creditors (such as the United Auto Workers, a campaign supporter of Obama and the Democrats) recovered substantially all that it was owed.
The problem with actions such as these is that they undermine the basis of trust and belief that legal contracts will be enforceable as written. Businesses and other economic actors make decisions based on laws that are written, and the belief that those laws will be enforced by whoever is in power without prejudice. An Administration that refuses to enforce laws that it doesn’t like, or enforces laws in certain cases (where it likes the outcome) but not in others (where it doesn’t like the outcome), or invents rights and privileges for certain controversial groups that Congress refused to authorize, undermines this trust.
The economy of the U.S. is based on people/businesses making long-term investments. Buying a house is a long-term investment. Building a factory is a long-term investment. Starting a partnership to build a business is a long-term investment. When people start to doubt that their contracts will be enforced, or that the likelihood of that enforcement will depend on the unknowable political situation existing at some specified point in the future, they will make fewer of these investments. The result will be lessened economic activity and the U.S. will be poorer for it. Nor is this idle speculation. We can see the result of societies operating with politicized extra-legal actions/ politicized law enforcement around the world. We don’t really see world class economies operating in this bunch.
The other problem collectively with Obama’s actions is that they seem to show a pattern of behavior (as opposed to a one-off response to a national emergency like 9/11, or even the market melt-down in 2008 when it appeared that the global financial system was about to collapse). A pattern of behavior has the potential to change the culture, especially when partisans for that side excuse (and some cases praise) these excesses as desirable, because they support the ends (ends justify means). The problem is that the other side may (and the longer this goes on, will) conclude that they are justified using the same tactics to achieve their ends, ends which they are as fervently attached to as Obama’s supporters are to their ends. Or, normal people will conclude that the law is only there to be manipulated by the powerful and will feel morally empowered to ignore the law where it is inconvenient (ie. to cheat on their taxes, the way those in Greece do today). Neither of these outcomes bode well for economic strength and stability.
Simply put, following and enforcing the law, especially when you don’t specifically like the outcome (or it is politically inconvenient), is a prerequisite for a strong and stable economy. A system in which the law, or application thereof, is dependent upon the political interests of the powerful and politically-connected is not one that is going to have what we now know as a first-world economy. While suspending the natural democratic processes temporarily during times of national emergency like WWII or 9/11 may be unavoidable and necessary, it can’t be allowed to become a pattern of behavior without doing serious damage to the system. Maybe suspending parts of Obamacare were desirable as policy (i.e. the law would have been better without those things), but it wasn’t a national emergency. Maybe legalizing millions of illegal aliens is a good policy, but it isn’t a national emergency. Maybe effectively suspending bankruptcy law to benefit the United Auto Workers was good policy, but it wasn’t a national emergency. Those who support this ends justify the means approach are contributing to its normalization. This will ensure its use by the other side when they get in power (and maybe even in a more expansive way), which will result in the destabilization of the basis for a strong, modern economy.