“But what I’m not going to do is just wait.  I think it’s fair to say that I’ve shown a lot of patience…But what we can’t do is just keep on wait­ing.”  Pres­i­dent Oba­ma, Novem­ber 5, 2014

The Con­sti­tu­tion offers no rem­e­dy for pres­i­den­tial impa­tience. Pres­i­dents, Mem­bers of Con­gress and judges are some­times con­sti­tu­tion­al­ly required to “just keep on wait­ing.”  And that is some­thing office­hold­ers of both polit­i­cal par­ties seem increas­ing­ly unwill­ing to do.  When it comes to cir­cum­vent­ing the rules to achieve the polit­i­cal objec­tives of the moment, the Pres­i­dent and some of his most stri­dent con­ser­v­a­tive foes are soulmates.

In this instance, the Pres­i­dent was talk­ing about his forth­com­ing exec­u­tive – one might say impe­r­i­al – order on immi­gra­tion.  The Pres­i­dent means to estab­lish a new nation­al pol­i­cy through extra-legal means, a roy­al procla­ma­tion that will effec­tive­ly nul­li­fy duly enact­ed laws on immi­gra­tion.  What­ev­er one thinks of those laws (I regard them as deeply flawed), chang­ing them by fiat will do more dam­age than not chang­ing them at all.

He has wait­ed to issue his edict not out of some saint­ly reser­voir of patience but out of polit­i­cal cal­cu­la­tion.  Mem­bers of his own par­ty per­suad­ed him to delay because they believed that issu­ing his exec­u­tive order would dam­age them in last week’s elections.

His delay may have made mat­ters worse, arguably help­ing sup­press turnout among Lati­nos.  His polit­i­cal par­ty has staked its for­tune on iden­ti­ty pol­i­tics: the very fact that you are a woman or an African Amer­i­can or of His­pan­ic descent or are attract­ed to some­one of your own gen­der is thought to genet­i­cal­ly pre­dis­pose you to vote Demo­c­ra­t­ic.  The par­ty believes that sup­port for their fac­tion is encod­ed in your DNA.  Democ­rats have a rec­i­p­ro­cal oblig­a­tion to gov­ern in the inter­ests of these iden­ti­ty groups, with­out regard to the broad­er pub­lic inter­est or con­sti­tu­tion­al order.  The Pres­i­dent vio­lat­ed this pact, the argu­ment goes, by mak­ing Lati­nos wait a few months for his immi­gra­tion decree. They, like the Pres­i­dent, hate to wait, so few­er of them voted.

It’s an inter­est­ing the­o­ry, but it hard­ly explains the breadth and depth of last Tuesday’s upheaval.  The Pres­i­dent seems not to have any grasp on its sig­nif­i­cance, dis­miss­ing it as a mere “fail­ure of pol­i­tics.”  He sim­ply can’t square those results with his belief that his tri­umph in 2008 marked a last­ing polit­i­cal realign­ment, one that would con­sign the Repub­li­can par­ty to per­ma­nent minor­i­ty sta­tus, if not obliv­ion.  With his elec­tion, Amer­i­ca entered a “post-par­ti­san” era, one in which par­ti­san­ship (at least in its Repub­li­can vari­ant) would melt away, leav­ing the Pres­i­dent free to exert his rule with only token oppo­si­tion.  Oba­macare was both the quin­tes­sence of this line of think­ing and the pri­ma­ry cause of its undoing.

Last week saw its demise.  Demo­c­ra­t­ic mythol­o­gy about the 2008 elec­tions now lies in ruins.  The par­ty suf­fered its worst Sen­ate loss­es (8 or 9 seats and 4 or 5 incum­bents) since 1980.  And that was the good news.  Repub­li­cans now hold more House seats than at any time since after the 1928 elec­tions. There are only 18 Demo­c­ra­t­ic Gov­er­nors, the fewest since 1999.   Democ­rats con­trol both the Governor’s man­sion and the leg­is­la­ture in only sev­en states.

But with suc­cess comes hubris.  Repub­li­cans have long chafed under the suf­fo­cat­ing lead­er­ship of Sen­ate Major­i­ty Leader Har­ry Reid (D‑NV).  They were espe­cial­ly crit­i­cal of the dubi­ous tac­tic he employed last Novem­ber to make it impos­si­ble for Repub­li­cans to fil­i­buster the President’s judi­cial and exec­u­tive branch nom­i­nees.  Even before they taste pow­er, some Repub­li­cans are voic­ing doubt about restor­ing the long-stand­ing fil­i­buster rule that Reid gut­ted.  Why change the rules back, they argue, when we now can block objec­tion­able nom­i­nees in com­mit­tee or by a sim­ple major­i­ty vote on the floor?  If we do take the White House in 2016, wouldn’t we be bet­ter off with­out the fil­i­buster?  We could pack the fed­er­al courts with judges who will rule our way and pop­u­late fed­er­al agen­cies with offi­cials who will rewrite laws accord­ing to our tastes.  And if Democ­rats keep the White House and retake the Sen­ate, won’t they just change the rules back again?  Why put our­selves at a dis­ad­van­tage?  No longer in the minor­i­ty, some Repub­li­cans now embrace Rei­d’s dis­dain for Sen­ate rules.

Sub­or­di­nat­ing long­stand­ing insti­tu­tion­al rules and prece­dents to the polit­i­cal appetites of the moment is thus not con­fined to mem­bers of the President’s par­ty.  Nor is it con­fined to the White House and Con­gress.  Judges, too, are play­ing that game.

Pri­or to last Fri­day, Democ­rats regard­ed the fed­er­al courts – with the excep­tion of the Supreme Court – as safe­ly stacked.  Gut­ting the fil­i­buster rule had enabled the Demo­c­ra­t­ic par­ty to fill numer­ous vacan­cies on the fed­er­al bench with reli­able par­ti­sans.  Nowhere was this more true than in the D.C. Cir­cuit Court of Appeals, where chal­lenges to exec­u­tive orders, reg­u­la­tions and Acts of Con­gress often orig­i­nate.  The Sen­ate con­firmed three judges to that Cir­cuit Court with­in two months of their assault on the fil­i­buster rule, giv­ing them a sol­id major­i­ty of judges on that bench.  But three judges select­ed from that ros­ter ruled last July that Con­gress had so bad­ly botched its draft of Oba­macare as to make it ille­gal for the gov­ern­ment to sub­si­dize the health insur­ance pre­mi­ums of rough­ly five mil­lion peo­ple who have obtained cov­er­age through fed­er­al exchanges.  Such a rul­ing, if allowed to stand, would put the health care law into chaos.

Not to wor­ry.  With­in weeks, the full D.C. Cir­cuit pulled the plug on the rul­ing, say­ing that the case would have to be heard again in Decem­ber, this time before all the judges in the stacked Cir­cuit, rather than by just three of its judges.  Every­one expect­ed the full Cir­cuit to over­turn the rul­ing and the Supreme Court to decline to take up any sub­se­quent appeal.  “It seems clear to me that that deci­sion will be over­turned,” Reid boast­ed last summer.

But the Supreme Court had a sur­prise for Mr. Reid: it announced last Fri­day that it wouldn’t wait for the D.C. Cir­cuit to re-exam­ine the case.  Instead, the high court itself will rule on the mat­ter next June with­out the ben­e­fit of the D.C. Cir­cuit Court’s wis­dom, an action that stunned many court observers.  The Supreme Court gen­er­al­ly does­n’t enter­tain cas­es until the low­er courts have had time to rule on the under­ly­ing legal ques­tion.  That is espe­cial­ly true where, as here, there is no dis­agree­ment among Cir­cuit courts for the high court to resolve.

The Supreme Court, like the Pres­i­dent, sim­ply decid­ed that it couldn’t wait for the low­er courts to adju­di­cate the cas­es and ren­der their rul­ings.  Their eager­ness to take up a case that is not yet, in the legal jar­gon, “ripe” might seem a small thing, espe­cial­ly when com­pared with what the Sen­ate did with the fil­i­buster or the Pres­i­den­t’s con­ceit that a pen and a phone are a suit­able sub­sti­tute for con­sti­tu­tion­al gov­er­nance.  The high court’s action is a depar­ture from rule and cus­tom, not the Con­sti­tu­tion or law.

Yet it seems to arise from the same mind­set, cir­cum­vent­ing tra­di­tion­al con­straints on pow­er.  Those in pow­er under­stand­ably resent such con­straints.  That is why the Founders estab­lished them. They believed that an enlarge­ment of gov­ern­ment pow­er or its con­cen­tra­tion in one per­son, branch or fac­tion was a threat to the Repub­lic, an evil to be fettered.

Such sen­si­bil­i­ties seem alien to the polit­i­cal class.  They regard unfet­tered use of gov­ern­ment pow­er in pur­suit of their respec­tive agen­das to be a good thing.  Repub­li­cans who have crit­i­cized Democ­rats for their tac­tics in pass­ing Oba­macare now seem will­ing to resort to even more ques­tion­able tac­tics to effect Sen­ate pas­sage of its repeal.   Rules that impede the pur­suit of pow­er – that force them to wait, or worse, to seek accom­mo­da­tion with their polit­i­cal oppo­nents – are increas­ing­ly viewed with con­tempt by par­ti­sans of all stripes.

By cre­at­ing a lim­it­ed fed­er­al gov­ern­ment and appor­tion­ing its pow­er among three branch­es, the Con­sti­tu­tion seeks to restrain a Pres­i­dent or a Con­gres­sion­al major­i­ty from impos­ing its will on a resis­tant minor­i­ty.  The long-estab­lished rules of the Sen­ate require peo­ple of dif­fer­ing opin­ions to hear one anoth­er out, to accom­mo­date oppos­ing view­points in order to advance their own, to give ground in order to gain it.

Nei­ther the Pres­i­dent nor his most stri­dent crit­ics have much patience for such for­mal­i­ties. They want what they want and they want it now.  Though their agen­das are dia­met­ri­cal­ly opposed, they are more alike than either would acknowl­edge.  Both hate to wait and, in their impa­tience, both are will­ing to tram­ple on law and precedent.