Understanding Why and How the Obama Administration Has Flouted the Rule of Law

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October 14, 2016|

Understanding Why and How the Obama Administration Has Flouted the Rule of Law

 

by Richard Epstein| Leave a Comment

It is very difficult to take issue with the pessimistic tone of Adam White’s sensible advice to the next President on 10 ways to promote the rule of law. All of the topics that he mentions are understood as serious, systemic weaknesses. When it comes to administrative law, President Obama has a penchant for excessive regulation on substantive matters. As will become clear, I differ with White on many specific points, but we agree on one central point. One of the reasons why the rule of law has fared poorly under the Obama administration is that the President shows little willingness to accept its requirements as a powerful or useful constraint on his various powers. Instead he operates under a program that is both autocratic on the one hand and misguided on the other.

 

President Obama starts, of course, with the substantive positions on which there is only one right answer—his own—and then games the system in order to find the best way to achieve that result. If he thinks that he has Congress with him...