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<\/a>What do these two men have in com\u00admon? More than you might think. [Cred\u00adit: Politico]<\/p><\/div>\u201cBut what I\u2019m not going to do is just wait. I think it\u2019s fair to say that I\u2019ve shown a lot of patience\u2026But what we can\u2019t do is just keep on wait\u00ading.\u201d<\/em> Pres\u00adi\u00addent Oba\u00adma<\/a>, Novem\u00adber 5, 2014\n The Con\u00adsti\u00adtu\u00adtion offers no rem\u00ade\u00addy for pres\u00adi\u00adden\u00adtial impa\u00adtience. Pres\u00adi\u00addents, Mem\u00adbers of Con\u00adgress and judges are some\u00adtimes con\u00adsti\u00adtu\u00adtion\u00adal\u00adly required to \u201cjust keep on wait\u00ading.\u201d And that is some\u00adthing office\u00adhold\u00aders of both polit\u00adi\u00adcal par\u00adties seem increas\u00ading\u00adly unwill\u00ading to do. When it comes to cir\u00adcum\u00advent\u00ading the rules to achieve the polit\u00adi\u00adcal objec\u00adtives of the moment, the Pres\u00adi\u00addent and some of his most stri\u00addent con\u00adser\u00adv\u00ada\u00adtive foes are soulmates.<\/p>\n <\/p>\n In this instance, the Pres\u00adi\u00addent was talk\u00ading about his forth\u00adcom\u00ading exec\u00adu\u00adtive \u2013 one might say impe\u00adr\u00adi\u00adal \u2013 order on immi\u00adgra\u00adtion. The Pres\u00adi\u00addent means to estab\u00adlish a new nation\u00adal pol\u00adi\u00adcy through extra-legal means, a roy\u00adal procla\u00adma\u00adtion that will effec\u00adtive\u00adly nul\u00adli\u00adfy duly enact\u00aded laws on immi\u00adgra\u00adtion. What\u00adev\u00ader one thinks of those laws (I regard them as deeply flawed), chang\u00ading them by fiat will do more dam\u00adage than not chang\u00ading them at all.<\/p>\n He has wait\u00aded to issue his edict not out of some saint\u00adly reser\u00advoir of patience but out of polit\u00adi\u00adcal cal\u00adcu\u00adla\u00adtion. Mem\u00adbers of his own par\u00adty per\u00adsuad\u00aded him to delay because they believed that issu\u00ading his exec\u00adu\u00adtive order would dam\u00adage them in last week\u2019s elections.<\/p>\n His delay may have made mat\u00adters worse, arguably help\u00ading sup\u00adpress turnout among Lati\u00adnos. His polit\u00adi\u00adcal par\u00adty has staked its for\u00adtune on iden\u00adti\u00adty pol\u00adi\u00adtics: the very fact that you are a woman or an African Amer\u00adi\u00adcan or of His\u00adpan\u00adic descent or are attract\u00aded to some\u00adone of your own gen\u00adder is thought to genet\u00adi\u00adcal\u00adly pre\u00addis\u00adpose you to vote Demo\u00adc\u00adra\u00adt\u00adic. The par\u00adty believes that sup\u00adport for their fac\u00adtion is encod\u00aded in your DNA<\/span>. Democ\u00adrats have a rec\u00adi\u00adp\u00adro\u00adcal oblig\u00ada\u00adtion to gov\u00adern in the inter\u00adests of these iden\u00adti\u00adty groups, with\u00adout regard to the broad\u00ader pub\u00adlic inter\u00adest or con\u00adsti\u00adtu\u00adtion\u00adal order. The Pres\u00adi\u00addent vio\u00adlat\u00aded this pact, the argu\u00adment<\/a> goes, by mak\u00ading Lati\u00adnos wait a few months for his immi\u00adgra\u00adtion decree. They, like the Pres\u00adi\u00addent, hate to wait, so few\u00ader of them voted.<\/p>\n It\u2019s an inter\u00adest\u00ading the\u00ado\u00adry, but it hard\u00adly explains the breadth and depth of last Tuesday\u2019s upheaval. The Pres\u00adi\u00addent seems not to have any grasp on its sig\u00adnif\u00adi\u00adcance, dis\u00admiss\u00ading it as a mere \u201cfail\u00adure of pol\u00adi\u00adtics<\/a>.\u201d He sim\u00adply can\u2019t square those results with his belief that his tri\u00adumph in 2008 marked a last\u00ading polit\u00adi\u00adcal realign\u00adment, one that would con\u00adsign the Repub\u00adli\u00adcan par\u00adty to per\u00adma\u00adnent minor\u00adi\u00adty sta\u00adtus, if not obliv\u00adion. With his elec\u00adtion, Amer\u00adi\u00adca entered a \u201cpost-par\u00adti\u00adsan\u201d era, one in which par\u00adti\u00adsan\u00adship (at least in its Repub\u00adli\u00adcan vari\u00adant) would melt away, leav\u00ading the Pres\u00adi\u00addent free to exert his rule with only token oppo\u00adsi\u00adtion. Oba\u00admacare was both the quin\u00adtes\u00adsence of this line of think\u00ading and the pri\u00adma\u00adry cause of its undoing.<\/p>\n Last week saw its demise. Demo\u00adc\u00adra\u00adt\u00adic mythol\u00ado\u00adgy about the 2008 elec\u00adtions now lies in ruins. The par\u00adty suf\u00adfered its worst Sen\u00adate loss\u00ades (8 or 9 seats and 4 or 5 incum\u00adbents) since 1980. And that was the good news. Repub\u00adli\u00adcans now hold more House seats than at any time since after the 1928 elec\u00adtions<\/a>. There are only 18 Demo\u00adc\u00adra\u00adt\u00adic Gov\u00ader\u00adnors, the fewest since 1999<\/a>. Democ\u00adrats con\u00adtrol both the Governor\u2019s man\u00adsion and the leg\u00adis\u00adla\u00adture in only sev\u00aden states<\/a>.<\/p>\n But with suc\u00adcess comes hubris. Repub\u00adli\u00adcans have long chafed under the suf\u00adfo\u00adcat\u00ading lead\u00ader\u00adship of Sen\u00adate Major\u00adi\u00adty Leader Har\u00adry Reid (D\u2011NV<\/span>). They were espe\u00adcial\u00adly crit\u00adi\u00adcal of the dubi\u00adous tac\u00adtic he employed last Novem\u00adber to make it impos\u00adsi\u00adble for Repub\u00adli\u00adcans to fil\u00adi\u00adbuster the President\u2019s judi\u00adcial and exec\u00adu\u00adtive branch nom\u00adi\u00adnees. Even before they taste pow\u00ader, some Repub\u00adli\u00adcans are voic\u00ading doubt about restor\u00ading the long-stand\u00ading fil\u00adi\u00adbuster rule that Reid gut\u00adted. Why change the rules back, they argue, when we now can block objec\u00adtion\u00adable nom\u00adi\u00adnees in com\u00admit\u00adtee or by a sim\u00adple major\u00adi\u00adty vote on the floor? If we do take the White House in 2016, wouldn\u2019t we be bet\u00adter off with\u00adout the fil\u00adi\u00adbuster? We could pack the fed\u00ader\u00adal courts with judges who will rule our way and pop\u00adu\u00adlate fed\u00ader\u00adal agen\u00adcies with offi\u00adcials who will rewrite laws accord\u00ading to our tastes. And if Democ\u00adrats keep the White House and retake the Sen\u00adate, won\u2019t they just change the rules back again? Why put our\u00adselves at a dis\u00adad\u00advan\u00adtage? No longer in the minor\u00adi\u00adty, some Repub\u00adli\u00adcans now embrace Rei\u00add\u2019s dis\u00addain for Sen\u00adate rules.<\/p>\n Sub\u00ador\u00addi\u00adnat\u00ading long\u00adstand\u00ading insti\u00adtu\u00adtion\u00adal rules and prece\u00addents to the polit\u00adi\u00adcal appetites of the moment is thus not con\u00adfined to mem\u00adbers of the President\u2019s par\u00adty. Nor is it con\u00adfined to the White House and Con\u00adgress. Judges, too, are play\u00ading that game.<\/p>\n Pri\u00ador to last Fri\u00adday, Democ\u00adrats regard\u00aded the fed\u00ader\u00adal courts \u2013 with the excep\u00adtion of the Supreme Court \u2013 as safe\u00adly stacked. Gut\u00adting the fil\u00adi\u00adbuster rule had enabled the Demo\u00adc\u00adra\u00adt\u00adic par\u00adty to fill numer\u00adous vacan\u00adcies on the fed\u00ader\u00adal bench with reli\u00adable par\u00adti\u00adsans. Nowhere was this more true than in the D.C. Cir\u00adcuit Court of Appeals, where chal\u00adlenges to exec\u00adu\u00adtive orders, reg\u00adu\u00adla\u00adtions and Acts of Con\u00adgress often orig\u00adi\u00adnate. The Sen\u00adate con\u00adfirmed three judges<\/a> to that Cir\u00adcuit Court with\u00adin two months of their assault on the fil\u00adi\u00adbuster rule, giv\u00ading them a sol\u00adid major\u00adi\u00adty of judges on that bench. But three judges select\u00aded from that ros\u00adter ruled<\/a> last July that Con\u00adgress had so bad\u00adly botched its draft of Oba\u00admacare as to make it ille\u00adgal for the gov\u00adern\u00adment to sub\u00adsi\u00addize the health insur\u00adance pre\u00admi\u00adums of rough\u00adly five mil\u00adlion peo\u00adple who have obtained cov\u00ader\u00adage through fed\u00ader\u00adal exchanges. Such a rul\u00ading, if allowed to stand, would put the health care law into chaos.<\/p>\n Not to wor\u00adry. With\u00adin weeks, the full D.C. Cir\u00adcuit pulled the plug<\/a> on the rul\u00ading, say\u00ading that the case would have to be heard again in Decem\u00adber, this time before all the judges in the stacked Cir\u00adcuit, rather than by just three of its judges. Every\u00adone expect\u00aded the full Cir\u00adcuit to over\u00adturn the rul\u00ading and the Supreme Court to decline to take up any sub\u00adse\u00adquent appeal. \u201cIt seems clear to me that that deci\u00adsion will be over\u00adturned,\u201d Reid boast\u00aded<\/a> last summer.<\/p>\n But the Supreme Court had a sur\u00adprise for Mr. Reid: it announced last Fri\u00adday<\/a> that it wouldn\u2019t wait for the D.C. Cir\u00adcuit to re-exam\u00adine the case. Instead, the high court itself will rule on the mat\u00adter next June with\u00adout the ben\u00ade\u00adfit of the D.C. Cir\u00adcuit Court\u2019s wis\u00addom, an action that stunned many court observers. The Supreme Court gen\u00ader\u00adal\u00adly does\u00adn\u2019t enter\u00adtain cas\u00ades until the low\u00ader courts have had time to rule on the under\u00adly\u00ading legal ques\u00adtion. That is espe\u00adcial\u00adly true where, as here, there is no dis\u00adagree\u00adment among Cir\u00adcuit courts for the high court to resolve.<\/p>\n The Supreme Court, like the Pres\u00adi\u00addent, sim\u00adply decid\u00aded that it couldn\u2019t wait for the low\u00ader courts to adju\u00addi\u00adcate the cas\u00ades and ren\u00adder their rul\u00adings. Their eager\u00adness to take up a case that is not yet, in the legal jar\u00adgon, \u201cripe\u201d might seem a small thing, espe\u00adcial\u00adly when com\u00adpared with what the Sen\u00adate did with the fil\u00adi\u00adbuster or the Pres\u00adi\u00adden\u00adt\u2019s con\u00adceit that a pen and a phone<\/a> are a suit\u00adable sub\u00adsti\u00adtute for con\u00adsti\u00adtu\u00adtion\u00adal gov\u00ader\u00adnance. The high court\u2019s action is a depar\u00adture from rule and cus\u00adtom, not the Con\u00adsti\u00adtu\u00adtion or law.<\/p>\n Yet it seems to arise from the same mind\u00adset, cir\u00adcum\u00advent\u00ading tra\u00addi\u00adtion\u00adal con\u00adstraints on pow\u00ader. Those in pow\u00ader under\u00adstand\u00adably resent such con\u00adstraints. That is why the Founders estab\u00adlished them. They believed that an enlarge\u00adment of gov\u00adern\u00adment pow\u00ader or its con\u00adcen\u00adtra\u00adtion in one per\u00adson, branch or fac\u00adtion was a threat to the Repub\u00adlic, an evil to be fettered.<\/p>\n Such sen\u00adsi\u00adbil\u00adi\u00adties seem alien to the polit\u00adi\u00adcal class. They regard unfet\u00adtered use of gov\u00adern\u00adment pow\u00ader in pur\u00adsuit of their respec\u00adtive agen\u00addas to be a good thing. Repub\u00adli\u00adcans who have crit\u00adi\u00adcized Democ\u00adrats for their tac\u00adtics in pass\u00ading Oba\u00admacare now seem will\u00ading to resort to even more ques\u00adtion\u00adable tac\u00adtics<\/a> to effect Sen\u00adate pas\u00adsage of its repeal. Rules that impede the pur\u00adsuit of pow\u00ader \u2013 that force them to wait, or worse, to seek accom\u00admo\u00adda\u00adtion with their polit\u00adi\u00adcal oppo\u00adnents \u2013 are increas\u00ading\u00adly viewed with con\u00adtempt by par\u00adti\u00adsans of all stripes.<\/p>\n By cre\u00adat\u00ading a lim\u00adit\u00aded fed\u00ader\u00adal gov\u00adern\u00adment and appor\u00adtion\u00ading its pow\u00ader among three branch\u00ades, the Con\u00adsti\u00adtu\u00adtion seeks to restrain a Pres\u00adi\u00addent or a Con\u00adgres\u00adsion\u00adal major\u00adi\u00adty from impos\u00ading its will on a resis\u00adtant minor\u00adi\u00adty. The long-estab\u00adlished rules of the Sen\u00adate require peo\u00adple of dif\u00adfer\u00ading opin\u00adions to hear one anoth\u00ader out, to accom\u00admo\u00addate oppos\u00ading view\u00adpoints in order to advance their own, to give ground in order to gain it.<\/p>\n Nei\u00adther the Pres\u00adi\u00addent nor his most stri\u00addent crit\u00adics have much patience for such for\u00admal\u00adi\u00adties. They want what they want and they want it now. Though their agen\u00addas are dia\u00admet\u00adri\u00adcal\u00adly opposed, they are more alike than either would acknowl\u00adedge. Both hate to wait and, in their impa\u00adtience, both are will\u00ading to tram\u00adple on law and precedent.<\/p>\n","protected":false},"excerpt":{"rendered":" \u201c<\/span>But what I\u2019m not going to do is just wait. I think it\u2019s fair to say that I\u2019ve shown a lot of patience\u2026But what we can\u2019t do is just keep on wait\u00ading.\u201d Pres\u00adi\u00addent Oba\u00adma, Novem\u00adber 5, 2014 The Con\u00adsti\u00adtu\u00adtion offers no \u2026 Con\u00adtin\u00adue read\u00ading