Nowadays, the president can often count on support (or at least silence) from like-minded attorneys, legal academics, and other expert commentators. During the ACA’s rollout, for example, almost no Democratic lawyers spoke out against the Obama administration’s controversial legal moves, just as almost no Republican lawyers spoke in defense of them. Law, I fear, is increasingly seen as simply another move in a partisan game—a raw extension of politics with less persuasive force of its own. If that’s the view of law that has enabled Congress to disregard legal conventions, why won’t that same view lead to presidential disregard of similar self-help conventions?
At the end of the day, the story of the ACA’s implementation leaves me equally encouraged and unsettled. Law still matters; it’s not politics all the way down. At the same time, the Obama administration’s legal violations don’t appear to be idiosyncratic expressions of a particular president’s governing style, but more-or-less inevitable reactions to polarization and the breakdown of governing conventions. While I’m skeptical that self-help conventions will reliably discipline such lawbreaking, I’ve got no better answers about how to restrain the president. That’s why it’s hard for me to shake the fear that we are entering an era marked by the relentless chipping away at the rule of law. I don’t want to seem alarmist: for now, such chipping away is modest. But it appears poised to become a durable feature of American governance, with consequences I can’t begin to anticipate. In contrast to some,162 I can’t view that trend with equanimity. It seems to me that the rule of law is a terrible thing to waste.