We Haven’t Won Yet

What the Liberal Media Still Doesn’t Get About Obama and Why We Should be Worried

by Evan Bernick:

We’re all libertarians now– or so it would seem. After years of fawning editorials that read like transcripts of President Obama’s public comments, the New York Times last week denounced the President for subpoenaing the phone records of millions of Americans and authorizing an internet-based information collection program of breathtaking scope and scale, called PRISM.

For sheer I-told-you-so vindication, few statements could give advocates of limited government sweeter satisfaction than the Times’ confession that the President has “lost all credibility.” But we should think twice before concluding that these scorned former sycophants will now become useful allies in the fight against big-government tyranny. Close reading of the Times editorial discloses three critical errors that will, if left uncorrected, continue to prevent the liberal press from fulfilling their journalistic responsibilities.

First, their slumber has been inexcusably long. The Times acknowledges that this is not the first time that President Obama  “has been caught overreaching in the use of his powers,” citing “secret warrants to scoop up a news agency” and “secret orders to kill an American suspected of terrorism.” While the Department of Justice only recently subpoenaed the phone records of reporters from the Associated Press, the killing of Anwar Al-Awlaki took place prior to President Obama’s re-election, and was international news. Further, we might add to these examples of overreach by citing such actions as unilaterally appointing individuals to positions on the National Labor Relations Board without congressional approval; bypassing secured creditors during the bailout of General Motors; and seeking to prevent states from passing laws intended to ensure the integrity of their electoral processes by invoking concerns about racial discrimination long after their sell-by date. All of these actions took place prior to November of 2012, and, yet, the editors of the Times endorsed President Obama for re-election. Stating that the Administration’s assurances can be trusted “no longer” begs the question of what President Obama ever did to earn their trust.

Second, they blame the office for corrupting the man, rather than the man for corrupting the office. Whereas once the Times told tales of a righteous liberal crusader obstructed by evil, regressive conservatives, it now mourns the corruption of that crusader— a tragic illustration of the “truism that the executive branch will use any power it is given and very likely abuse it.” It’s a different narrative, but it’s still fictional.

As we have seen, President Obama has not simply abused powers that he has been given—he has grasped for powers that he has not been and could not be given. There is no power, for instance, that could have enabled him to bypass secured creditors during the GM bailout. He has not, then, been corrupted by the office. Corruption has been an enduring feature of his presidency. It is by no means a truism that an executive will repeatedly violate the Constitution that he has sworn to protect. We have had sitting Presidents refuse to accept powers that they have been given by Congress, on the grounds that it would be unconstitutional for them to do so. Grover Cleveland’s veto of legislation that he considered to be unconstitutional remains an instructive example.

Finally, they blame Congress for giving the President illegitimate powers and thus diminish the President’s responsibility for eagerly grasping them and exercising them. The Times editors conclude by calling for the Patriot Act–something which President Obama cites as authority for the subpoenas and for PRISM—to be “curtailed, if not repealed.” The implication is that the subpoenas and PRISM were somehow inevitable, given the existence of the Patriot Act.

But the Times also recalls that President Obama railed against the Patriot Act prior to becoming President and criticized his predecessor in office for enforcing it. Indeed, sitting Presidents have refused to enforce laws that they regarded as unconstitutional. Abraham Lincoln, whom President Obama often appeals to for authority, refused to enforce the Fugitive Slave Act, even though Congress passed it with all due deliberation. But Obama has not merely enforced it— according to Representative George Sensenbrenner, who introduced the Patriot Act, Obama has taken it far beyond its intended scope.

It’s immensely gratifying to see the Times (as well as the Washington Post and the Huffington Post, among other liberal press outlets) call for a change in Administration practice in light of the recent revelations. But they must change as well. They must hold President Obama personally responsible for constitutional violations that take place under his watch. He must be held responsible if he abuses legitimate powers that he has been given and if he grasps and exercises powers that he can’t constitutionally be given. He must be held responsible all the time. He must be held responsible, regardless of what his predecessors have done. He has not fallen from grace—he never possessed it, and he must be scrutinized, criticized, and fiercely opposed in and by the press accordingly.

Evan Bernick is a Legal Associate at a DC think tank and a Legal Fellow with the Becket Fund for Religious Liberty. He blogs daily on his own website, The Benevolent Objectivist.