Cato’s Waler Olson published an excellent column just before New Year’s in the Providence Journal, pointing out that everyone should be happy about the judiciary’s willingness to confound the president by striking his illegal rulemaking, whoever happens to be president at the moment.
Lately judges have struck down several big regulations from the Obama administration, putting at risk parts of its policy legacy. Some liberal commentators have reacted by blasting the judges as meddlesome activists and calling for more judicial deference to the president’s power to set national policy with the help of what are seen as expert federal agencies.
Bad idea, guys. If you’re worried about President-elect Donald Trump, this is exactly the wrong moment to reproach judges for standing up to executive-branch power grabs.
Olson walks through several examples of Obama regulations, rules and executive agency rulings which, whatever their merits as policy, were struck down as contrary to law. He argues, persuasively, that everyone — especially those looking ahead with trepidation toward Trump’s presidency, should “be celebrating an energetic judiciary that shows a watchful spirit against the encroachments of presidential power.”
But the entire column also serves as a subtle reproach to Obama’s decision, after he lost control of Congress, to take a go-it-alone attitude toward policy from the Oval Office. As our editorial today observes, Obama had all the skills of a great campaigner, but “what he never showed were skills for coalition-building, legislating, persuading rivals and deal-making — that is, for governing.”
Republicans were often intransigent toward Obama — after all, they were elected to oppose him. But they were not unwilling to cut deals. They did so in January 2013, even on the issue where they seemed most intransigent — tax increases. But of course that was a deal with Joe Biden, after Obama had declared publicly that he was done negotiating. It took someone with a willingness to govern to avoid the fiscal cliff.
Republicans also split the baby at a few other critical moments, even on Planned Parenthood and Zika funding, which seemed like an impossible task. One can only wonder what sort of presidency Obama might have had if he hadn’t decided, in 2011, that Republicans’ failure to go along with exactly what he wanted (“We can’t wait”) would become his chief election year cudgel to be wielded in public, rather than an impetus to work quietly and find legislative compromises where both sides had to yield a bit.
In the meantime, we’re about to find out whether Trump, who famously talks about pragmatism and cutting deals, and is not well-grounded in any particular ideology, can do any better in this regard. He has a low bar to clear.
And if he fails in this, and starts trying to call the shots on his own, we should hope and pray that there are still judges there — even the judges he himself appoints — to rebuke him, just as many judges Obama appointed were not afraid to rebuke him.
