President Trump's nomination of Brett Kavanaugh to fill the vacancy left by retiring Supreme Court Justice Anthony Kennedy has predictably produced apoplexy on the left. Their certainty – and outrage – that one man will have the power to dispense rights they view to be nonexistent, and dispense with others they consider inalienable, only shores up a fact that the left will almost never admit: The federal government has far too much power.
While politicians on the right certainly can wield excessive power just as oppressively as leftists can, traditionally it has been conservative Republicans and Libertarians calling for smaller government as a matter of constitutional principle, while liberal and progressive Democrats argue that more government is the appropriate solution to every problem.
However, big government is apparently fine for Democrats only as long Democrats run the government. When Republicans control the levers of power – not so much.
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The contraposition of the Obama and Trump administrations demonstrates the hypocrisy and deliberate blindness of the left when it comes to the threat of overweening government power. Democrats loved it when President Barack "I've got a pen and I've got a phone" Obama utilized executive orders to achieve policy objectives they wanted, like Obama's DACA order on immigration. But faced with President Trump's ability to exercise that same power (even if just to undo Obama's orders), they scream "Fascism!"
The problem isn't Obama or Trump per se; it is an executive branch that increasingly exceeds the constitutional limits of its power, and usurps that of Congress.
There should be bipartisan concern for government disregarding restraints imposed by the Constitution. But Democrats have perhaps become complacent because their side has more often manipulated the rules to their advantage, while Republicans have been cowed out of exercising even their legitimate powers. The left – including our reliably leftist media – has had prodigious success defeating GOP candidates by lobbing deceitful personal attacks ("Paul Ryan will push granny off a cliff!" "Bush is Hitler!" "Mitt Romney caused people to die of cancer!"). And they have thwarted Republican policy initiatives with hysterical warnings of the catastrophes that will transpire. ("Poor people will starve!" "The environment will be destroyed!") More concerned about bad press than of betraying their constituents, congressional Republicans have managed to do precious little, despite control of both houses of Congress since 2014.
Over the years, the Supreme Court's power has also grown to levels the founders would never have anticipated or approved of. Initiatives that could never garner a majority in Congress or state legislatures have become the province of judicial declarations. And while Supreme Court justices appointed by Democratic presidents have been reliably liberal, justices nominated by Republican presidents have often "grown" in the position to become reliable votes for liberal causes celebres. Nixon nominee Harry Blackmun authored the truly execrable opinion in Roe v. Wade. Chief Justice John Roberts, nominated by George W. Bush, cast the deciding vote to save Obamacare. Outgoing Justice Anthony Kennedy, nominated by Ronald Reagan, wrote the Obergefell v. Hodges decision that heralded a constitutional right to gay marriage. Retired Justice John Paul Stevens (another Nixon appointee) recently wrote an editorial in which he argued that the Second Amendment should be repealed.
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But the presidency of Donald Trump has changed the game for the left. Suddenly, Democrats are concerned about the powers of the federal government. (At least the presidency and the judiciary. If the Republican-controlled Congress ever gets around to doing anything, no doubt we'll hear threats of dire consequences there, as well.) In addition to caterwauling about Trump's executive orders, the left is now concerned that a conservative majority on the Supreme Court is protecting the First Amendment speech and religion rights of Americans on the right. (As Justice Elena Kagan succinctly put it in her dissent in Janus v. AFSCME, conservatives on the Supreme Court are "weaponizing the First Amendment.")
This would be the perfect time for Democrats to admit the shortsightedness of their earlier love affair with increased federal government power, and to rediscover the logic behind the separation of powers and limits on government found in the U.S. Constitution. Instead, their strategy seems to be to try to regain Democratic control of all three branches of the federal government so that they can wield power once again, without fear – unlike Republicans – of any press pushback.
We fought the Revolutionary War to throw off the yoke of monarchy; why on earth are we working so diligently to create another one? In place of a permanent class of royalty and nobility, we have created a permanent political class in Washington, D.C. The remedy is not merely packing each branch of government with "our guys," but in realizing that the best chance for freedom and progress can be achieved when government is confined to the roles set out for it in the Constitution.