Settled law. That's what we were told Obamacare was. But there's nothing settled about it, which is what makes it so unsettling-from the Supreme Court's ruling that the government can compel citizens to engage in commerce (thereby delegitimizing the people's liberty), to the amateurish rollout of the health care website, to Congress excusing themselves from the law, to the (thus far) twenty-nine changes, exemptions, and cut outs President Obama has implemented without congressional approval. It makes one ask: Mr. President, if you like your health care law why don't you keep your health care law? Which might be humorous if it wasn't so serious.
Each change in the law disrupts lives and burdens businesses with additional expenses. In a constricted economy, many businesses, which are already struggling to make profits, are finding their very survival dependent upon on either cutting staff, cutting hours, or cutting insurance benefits.
Of course the changes shouldn't come as a surprise. The President warned the American people he would act alone if need be. "One of the things that I'll be emphasizing," he said at a press conference on January 14, 2014, "is the fact that we are not just going to be waiting for legislation in order to make sure that we're providing Americans the kind of help that they need. I've got a pen and I've got a phone." And then, at the State of the Union, he defiantly waved his pen and phone under the nose of Congress. Never mind the fact that leading constitutional scholars deem the unilateral exercise of the president's pen and phone as unconstitutional.
Many astute observers and operatives, right and left, are concerned that the president has stepped outside the bounds of his constitutional authority-that he has abused his power. While touring Thomas Jefferson's home, Monticello, with President Francois Hollande of France, President Obama joked: "The good thing about being president [is] I can do whatever I want." With any other president we would discount such a comment as simply a bit of fun hyperbole. With this president, however, such a comment becomes a barometer of his true self, not because I wish it so but because his words and actions make it so. Jesus said it best: "The things that proceed out of the mouth come from the heart, and these defile the man" (Matthew 15:18).
What we've seen and heard from this president is something more akin to the rule of men than the rule of law. John Adams, in the Massachusetts Constitution, made famous the conviction that America is "a government of laws and not of men." Marinated in the English law tradition, Adams first learned this principle from Samuel Rutherford's 1644 Lex, Rex ("the law is king"), John Locke's 1690 The Second Treatise on Government, and Charles Montesquieu's 1748 The Spirit of the Laws. To these English intellectuals, as well as to Moses, Aristotle, Cicero, and the authors of Magna Carta, the Mayflower Compact, and the Constitution of the United States the rule of law-the principle that king and queen, priest and prophet are all equal under the law, and that neither prince nor pauper is above the law-was sacrosanct.
So when the president talks about pens and phones and doing whatever he wants because he's president, it's troubling indeed. But more troubling are the autonomous actions taken with his pen-the broad and capricious executive orders, the picking and choosing of what laws to enforce and defend before the Supreme Court, and the politically motivated rewriting of the Patient Protection and Affordable Care Act. President Harry Truman warned: "If we don't have a proper fundamental moral background [one that adheres to the rule of law], we will finally end up with a totalitarian government which does not believe in rights for anybody except the state."
Liberals are finding it difficult to defend this president and his ever-evolving changes to what we were told was settled law. This has prompted many to call the president's actions lawless; and conservatives aren't the only ones using that word. Lawlessness is just another way of saying the president has abandoned the rule of law for the rule of man. And both terms-"lawlessness" and "the rule of man"-are just polite ways of saying what no one wants to say.
Yet, we can't escape these truths: lawlessness in a citizen makes him a criminal; lawlessness in a Congress makes them an oligarchy; lawlessness in a president makes him a tyrant.
And nothing could be more lawless and tyrannical than personally assuming the prerogatives of the presidency, the Congress, and the courts by effectively rewriting the health care law with a stroke of the executive pen. So said James Madison in Federalist 47. "The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny."
But the people don't see the face of tyranny. They think they see the face of a man trying to do good. George Orwell, in his essay, "Shooting an Elephant," observed, however, that the tyrant "wears a mask, and his face grows to fit it." Often the mask scowls with malevolence. Oftener still the mask smiles with benevolence, promising goods while trampling liberties. "Of all tyrannies," C. S. Lewis wrote, "a tyranny sincerely exercised for the good of its victims may be the most oppressive. Those who torment us for our own good will torment us without end for they do so with the approval of their own conscience."
Perhaps it's time for us to recognize the distressing reality that we live in an age of "soft tyranny" (in the words of Alexis de Tocqueville). Perhaps it's time for us to call things by their proper name. Perhaps it's time for us to unmask the tyrant's smile and demand, once again, that those who rule must rule under the law-and not presume to be a law unto themselves.