In the Obamacare litigation, conservatives learned the hard way not to pin their policy hopes on the courts. More often than not, they will fail conservatives.
The conservative movement has become constitutionally literate. It has developed and won wide acceptance for its jurisprudential views on the Second Amendment and revived commerce clause litigation. It now needs to think strategically beyond the courts about how to contain and slow attacks by the federal government on economic freedom and religious liberty.
For starters, conservatives should become dogged defenders of federalism. Marriage? Let the states take care of it. Obamacare? Whenever possible, seek waivers to customize and experiment at the state level. Education? Make common cause with dissatisfied liberals and dump No Child Left Behind. Diffused power is not simply a tactic to minimize the damage from Obamaism; it is ultimately one of the best guarantees of personal liberty under any president. As a bonus, Republicans hold 30 of 50 governorships. The more policy making they do and the less the Obama administration does the better.
Next, conservatives would do well to get away from an executive-centric view of politics. If Republicans don’t have the White House they must cultivate their own Henry Clay and Sam Rayburn who can lead on significant legislation and capture the public’s attention. Moreover, they would do well to challenge executive privilege at every turn and rein in law by fiat. Again, this is not merely anti-Obama strategy but sound tactics for containing executive power under any administration, something that greatly concerned the Founders.
When Republicans were in the White House more often than Democrats, they became more than a little expedient when it came to separation of powers. It is time to return to conventional checks and balances, push for the restoration of congressional power and insist on executive-branch transparency. Until Republicans rediscover the key to presidential electoral politics, they need to reestablish some limits on presidential power.