The Democrats' coup d'état through faits accomplis and judicial Putsch has failed

President Obama governed domestically by executive order and internationally by agreements that do not have the force of treaty. The most notable examples of domestic executive orders were:

• the Clean Power Plan in the area of climate change,
• the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) in the area of immigration,
• the Deferred Action for Childhood Arrivals (DACA) again in the area of immigration.

The most notable examples of international agreements that do not have the force of treaty were:

• the Paris Agreement again in the area of climate change,
• the Joint Comprehensive Plan of Action (JCPOA), also known as the Iran Nuclear Agreement, which attempts to slow down Iran's efforts to acquire nuclear weapons (although it may only simply serve to guarantee that Iran eventually acquires such weapons).

All of these executive orders and international agreements do not have any legislative sanction and can be reversed by a future president "at the stroke of a pen," a phrase we have heard repeatedly this week.

Obama's strategy was to use executive power to change conditions on the ground. Interested parties (for example, power plants or immigration authorities) would be forced to comply with and adapt to the new executive directives. Until last Tuesday night, it was anticipated that President Obama would then hand off the presidency to Hillary Clinton, who would reaffirm Obama's executive orders and international agreements. By the time a Republican president took office in the distant future, the Democrats hoped, the changes would have taken root so deeply that reversing them would, practically speaking, be impossible. They would be a fait accompli.

Legal actions prevented Obama from enforcing some of these executive actions. For example, 27 states took legal action to stop the Clean Power Plan and the United States Supreme Court has ordered the EPA to halt enforcement of the plan until a lower court rules in the lawsuit against the plan. Likewise, 26 states took legal action to enjoin implementation of both DAPA and DACA expansion and Judge Andrew S. Hanen has issued a preliminary injunction blocking the program from going into effect while that legal action proceeds. These lawsuits certainly were obstacles. Nevertheless, if Obama could pack the courts with judicial appointees who would defer to the executive branch and affirm the legal force of his executive actions and international agreements, he could overcome these legal challenges.

The most important judicial appointment the Democrats hoped to make was the replacement of Justice Antonin Scalia on the Supreme Court. It was envisioned that Hillary would be elected and the Democrats would retake the Senate. Then, Hillary would submit a new nominee and the Democratic Senate, not having a filibuster-proof majority, would use the nuclear option to confirm that nominee, thereby replacing the most conservative justice on the court with a compliant liberal and changing the balance on the court for decades. For example, the Supreme Court's order to the EPA to halt enforcement of the Clean Power Plan resulted from a 5-4 decision, with Scalia voting to halt enforcement; a Hillary-appointed justice presumably would vote the other way, flipping the decision. What's more, it had been the ferocious Italian badger Scalia, who over the years had so clearly identified the dangers posed to the American constitutional order by such pernicious legal doctrines as substantive due process. For example, in his dissent from the recent Obergefell decision, wherein the Court invented a right to same-sex marriage, basing its opinion on a substantive due process interpretation of the 14th Amendment, Scalia wrote:

I write to call attention to this Court's threat to American democracy. ... [I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. ... But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. ... This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776; the freedom to govern themselves. ... This is a naked judicial claim to legislative -- indeed, super-legislative -- power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional provision agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices' "reasoned judgment." A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy. (emphasis added)

Note: For a full discussion of the Obergefell decision and substantive due process in general, see my blog post here.

If the Democrats could somehow manage to forge a liberal majority on the Supreme Court and that liberal majority (a majority of an unelected committee of nine) could then wield such malleable legal principles as the substantive due process argument to obtain the results they wanted, the Democrats could manage to create a form of government whereby the American people would be tyrannized over by a thin elite of Democratic politicians and jurists, enforcing their will through the Presidency, the highest court in the land, and the enormous Federal bureaucracy. The Democrats could take an enormous step in this direction by replacing Scalia with a more liberal voice.

Obama also used strict party line votes and abused the legislative reconciliation process to ram through Obamacare without bipartisan consensus. Thus, although Obamacare did technically have legislative sanction, which was upheld by the Supreme Court, it was passed with no support from Republican senators and congressmen. Thus, a Republican Congress and a new Republican president would feel no compunction about repealing it. Once again the Democrats' hope was that, by the time a Republican Congress and President got the opportunity to repeal or substantially modify the legislation, Obamacare would be so thoroughly entrenched that changing its provisions would be too difficult. Obamacare, too, would then have become a fait accompli.

The Republicans must make a concerted effort to make clear to the American people that any chaos that results from the overturning of all these executive orders, international agreements without the force of treaties, Supreme Court decisions based on faulty legal arguments, and legislation passed without bipartisan support is not the responsibility of the incoming Republicans, but of Obama and the Democrats, who, for the last 8 years, have attempted to govern by circumventing the legislative branch of government and the rights of the states, an extraordinary abuse of power never imagined by our constitutional system. In fact, the election of Donald Trump and a Republican majority in both houses of Congress has narrowly averted the consummation of a silent revolution that was underway. Democrats could not get the cooperation of the Republican Congress or Republican state governments, so, instead of seeking consensus, as our constitutional system of checks and balances requires, they hoped to bypass the legislative branch and the states entirely by permanently occupying the presidency and packing the courts with judges who would defer to the executive. Then, they would use the crushing force of the Federal bureaucracy to enforce their vision. When one considers the revolutionary nature of the changes they were attempting, all the pleas this week from Obama and Clinton that Mr Trump abide by the "rule of law" are the height of hypocrisy.

Consider, for example, the lawlessness of Obama's executive orders in the area of immigration. Courts have found that the DAPA executive order violates the rulemaking requirements of the Administrative Procedure Act and that the Immigration and Nationality Act "flatly does not permit" deferred action.

Or consider the lawlessness of Obama's Clean Power Plan executive order. Of this plan, Laurence Tribe, who was Barack Obama's professor of constitutional law at Yale and a man who has been mentioned frequently as a potential Democratic appointee to the Supreme Court, wrote:

I recently filed comments with the Environmental Protection Agency urging the agency to withdraw its Clean Power Plan, a regulatory proposal to reduce carbon emissions from the nation’s electric power plants. In my view, coping with climate change is a vital end, but it does not justify using unconstitutional means. ... After studying the only legal basis offered for the EPA’s proposed rule, I concluded that the agency is asserting executive power far beyond its lawful authority. ... [T]he EPA, like every administrative agency, is constitutionally forbidden to exercise powers Congress never delegated to it in the first place. The brute fact is that the Obama administration failed to get climate legislation through Congress. Yet the EPA is acting as though it has the legislative authority anyway to re-engineer the nation’s electric generating system and power grid. It does not. (emphasis added)

JV DeLong in an article in Forbes describes the lawless Democratic strategy:

EPA also practices government by fait accompli. In their petition for a stay of the CPP [Clean Power Plan] rule, the utilities described the aftermath of a Supreme Court victory they won last year:

The day after [the Supreme] Court ruled ... that EPA had violated the Clean Air Act (“CAA”) in enacting its rule regulating fossil fuel-fired plants . . . EPA boasted in an official blog post that the Court’s decision was effectively a nullity. Because the rule had not been stayed during the years of litigation, EPA assured its supporters that ‘the majority of power plants are already in compliance or well on their way to compliance.’ Then, in reliance on EPA’s representation that most power plants had already fully complied, the D.C. Circuit responded to this Court’s remand by declining to vacate the rule that this Court had declared unlawful. . . . In short, EPA extracted ‘nearly $10 billion a year’ in compliance from power plants before this Court could even review the rule, ... and then successfully used that unlawfully-mandated-compliance to keep the rule in place even after this Court declared that the agency had violated the law.

In the CPP litigation, it is hard to avoid the conclusion that EPA had the same game plan in mind – force expensive compliance during the leisurely course of appeal, and then contend that things have become so convoluted that there is no going back. It is the strategy of ObamaCare and Dodd-Frank, not just of EPA.

Finally, consider how Obama, instead of seeking ratification of significant, formal international agreements as treaties in the United States Senate, as he is constitutionally required to do, sought to bypass the Senate entirely because he knew his agreements would not garner the 2/3 of the votes required for treaty ratification. For his agreement with the Iranians Obama instead sought validation from the United Nations, an international body that has no sovereign power in the United States. This is a simply extraordinary example of an attempt to circumvent the rules of government laid out by the American Constitution and to substitute for the prerogatives of the Senate the authority of a super-national body! Of Obama's actions, Fred Fleitz writes in the National Review:

Knowing that a bipartisan majority of Congress opposed the nuclear deal and that the U.S. Senate would never ratify it as a treaty, the Obama administration arranged to go around the Senate by negotiating the deal as an executive agreement endorsed by the U.N. Security Council. Because Security Council resolutions are binding on all U.N. members, it could therefore be argued that the nuclear deal was binding on the United States even though it had not been ratified by the Senate. But that is not how our constitutional order works. American presidents historically have decided which international agreements are to be treated as treaties, but the Iran deal specified that it be ratified by the Iranian parliament. If President Obama wanted to make a long-term international agreement binding on the United States, he needs consent from Congress. Anything else is a serious affront to the Constitution, and no U.N. endorsement changes that.

Of the Paris Agreement on Climate Change, Steven Groves of the Heritage Foundation writes:

While Presidents should have a certain amount of discretion to choose the legal form of international agreements they are negotiating, President Obama has placed his desire to achieve an international environmental win above governmental comity and historical U.S. treaty practice. Major environmental treaties that have significant domestic impacts should not be developed and approved by the executive alone. An agreement with far-reaching domestic consequences like the Paris Protocol will lack democratic legitimacy unless the Senate or Congress as a whole, representing the will of the American people, gives its approval.

Thus, it is not the lawlessness of Trump we need to worry about. It is not Trump who over the last 8 years has been governing unconstitutionally, but rather Obama and the Democrats! Say what you will about the loutishness and lack of qualifications of Donald Trump, a man for whom I did not vote myself. His election has prevented a thin layer of lawless (and, apparently, thoroughly corrupt) Democratic elites, who were packing the courts, manipulating the vast and crushing power of Federal bureaucracies like the EPA and the Immigration and Naturalization Service, and disregarding the constitutionally guaranteed prerogatives of the Senate, and who were also enabled by a compliant and naive left-wing press, from perpetrating a silent coup d'état on the American people. In trying to work their mischief, these Democrats have honed powerful new tools like executive orders, international agreements without the force of treaties, the nuclear option (which ends the filibuster and undermines bipartisan comity in the Senate), the reconciliation process, and substantive due process. The Democrats may now argue that the Republicans should refrain from using these tools (and they may be right). But, it must always be remembered that it was ruthless Democrats who first perfected their use. What incentive do Republicans now have to refrain from using these tools when they know that Democrats like the absolutely shameless Harry Reid, if they return to power, will not hesitate to take these tools up again?

So, now, hopefully, the first thing Mr Trump will do is replace Justice Scalia with a justice in the Scalia tradition, thereby shoring up the conservative bloc on the Supreme Court.

Aside: All I can say is that the Democrats had better pray for the extended good health of Ruth Bader Ginsburg, the Supreme Court Justice whom smug liberals have named The Notorious RBG. Their haughty gloating may have been premature. If she should pass away or become mentally incompetent to serve on the Supreme Court -- and her recent "ill-advised" comments about Mr Trump have given signs that her mind is beginning to go -- Mr Trump will get to use the nuclear option to replace her with yet another justice in the Scalia mold, thereby tipping the balance of the Court back in favor of jurists who do not believe in the Democrats' tyrannical circumvention of the legislative branch. How ironic it would be if her last thought, as she passed into the darkness, were the insults she, confident of a Hillary victory, had flung so stupidly against the man who will appoint her replacement.

Subsequent to this Supreme Court appointment, I hope that Mr Trump will rapidly proceed to the dismantling of Obama's unilateral executive orders and international agreements, emphasizing to the American people that any chaos that ensues from this dismantling must be laid squarely at the feet of Obama, who for 8 years has ruled as a lawless tyrant.