Written constitutions matter little in Latin American countries run by strutting ex-colonels and widows of populist demagogues. In these banana republics, the caudillo exercises both executive and legislative powers. Laws are not written by legislatures, but emanate from the strongman’s pen.
The U.S. would be heading further in this direction if Hillary Clintonbecomes president. This might sound outlandish, but consider that President Obama has repeatedly taken unconstitutional actions and sabotaged the separation of powers. “What the president is suggesting,” George Washington University Law School professorJonathan Turley said regarding Mr. Obama’s executive order on immigration, “is tearing at the very fabric of the Constitution.”
A Clinton presidency would ratify the new post-Constitutional order. Mrs. Clinton explicitly says that she will disregard the separation of powers and assume the legislative branch’s prerogative.
Her campaign website promises that President Clinton will “tighten the gun show and Internet sales loophole if Congress won’t.” She will “take administrative action to require that any person attempting to sell a significant number of guns be deemed ‘in the business’ of selling firearms.”
The same goes for campaign-finance legislation, which Mrs. Clinton says she will champion. But if Congress doesn’t pass it, she will “sign an executive order requiring federal government contractors” to “publicly disclose significant political spending.” She will direct the Securities and Exchange Commission to pass a rule “requiring publicly traded companies to disclose political spending to shareholders.” Neither action is authorized by existing law.
That’s not all. On Oct. 24, Mrs. Clinton, speaking at the Iowa Democratic Party’s Jefferson-Jackson dinner, pledged to “use executive action to prevent deportation” of so-called dreamers. “If we cannot get comprehensive immigration reform” from Congress, she said, “then I will go as far as I can, even beyond President Obama.”
Last week she declared that she would use executive action to crack down on corporate “inversions”—when an American company merges with a foreign one, and thereby moves its headquarters abroad, making it subject to the new host country’s lower tax rate. “I would close loopholes like what’s called ‘earnings stripping’ that corporations are exploiting,” Mrs. Clinton said at an Iowa town hall. “If Congress won’t act, then I will ask the Treasury Department, when I’m there, to use its regulatory authority, if that’s what it takes.”
In each instance, Mrs. Clinton did not assert that the president has existing statutory authority to take these actions—but no matter. This attitude is not only at odds with constitutionalism, it is at odds with Mrs. Clinton’s rhetoric as a senator, when she regularly attacked President George W. Bush for his executive orders. “We have a constitutional democracy,” she said in 2006, “if we can keep it against the most extraordinary claims of executive power that we’ve seen in the nation’s history.”
The next year, while she was campaigning for the White House, she told the Boston Globe: “I think you have to restore the checks and balances and the separation of powers, which means reining in the presidency.” In 2008, still during the Democratic primary, she said: “This administration’s unbridled ambition to transform the executive into an imperial presidency, in an attempt to strengthen the office, has weakened our nation.”
Set aside, for the moment, her ludicrous characterization of Mr. Bush’s executive orders, which were carefully framed within the president’s statutory authority or constitutional powers. How does one square Mrs. Clinton’s past concerns about presidential overreach with her present insistence that she’ll act alone in the White House if Congress does not bend to her will?
This is no small matter. “The accumulation of all powers, legislative, executive and judiciary in the same hands,” James Madison warned in Federalist 47, “may justly be pronounced the very definition of tyranny.” Madison goes on to paraphrase Montesquieu: “There can be no liberty where the legislative and executive powers are united in the same person.”
Or we might consult Thomas Jefferson, namesake of the Iowa Democratic dinner where Mrs. Clinton spoke. In his “Notes on the State of Virginia,” Jefferson writes that “the concentrating” of the legislative, executive and judicial powers “in the same hands, is precisely the definition of despotic government.”
Progressives long ago came to view the Constitution as a quaint document with no binding power. But until recently, they never were so baldly contemptuous of it. Now liberals consider running roughshod over our governing charter not only fashionable but mandatory. No constitutional niceties will stand in the way of their vision. Which explains why this election will decide whether America will remain, in the words of John Adams, “a government of laws, and not of men.”
A version of this article appeared December 17, 2015, in the U.S. edition of The Wall Street Journal, with the headline Government Shutdown As Self-Promotion and online at WSJ.com
