The Imperial Presidency

by Megan McArdle - February 23rd, 2011 - The Atlantic

Orin Kerr worries that the Obama administration's decision not to defend the Defense of Marriage Act may have far-reaching implications:

... Here's what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power...

Maybe it was always thus, but it seems to me that both parties are increasingly resorting to procedural tricks rather than politics, and it worries me.

It should worry everyone.

The true threat to our freedoms comes from a combination of this executive branch power with politically sympathetic judges like Gladys Kessler. Her insane ruling that thinking is committing Interstate Commerce, combined with the power to refuse to defend any law a President deems disagreeable politically, changes our courts into a farce. If our courts are not already bastions of injustice, they are about to become so.

Especially if a combination of these two new attitudes on law are applied to such things as a Presidential ruling declaring a state of emergency and suspending elections as a result - say next year in 2010?