Obama’s Corporatist Constitution

Mickey Kaus Columnist
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We got business, we got labor, we got evangelicals. You expect me to get Congress too? Like many others, I’ve been on the lookout for examples of corporatism — the tendency to replace the formal individuated equality of the market, universal rights and democracy with rule by society’s various big interest groups, exercising special privileges by virtue of their particular social role and cutting deals with each other (usually to protect themselves).**  Some examples of corporatism:  Special privileges for reporters (they’re “society’s eyes and ears”!) or big banks (they’re “too big to fail”). Corporatism’s acutely fascinating because it’s insidious, anti-democratic, sclerotic and perhaps inevitable. (If a bank is too big to let fail, as arguably several are, then that bank will almost by definition be specially shielded from the Darwinian struggle the market. Those special privileges may come with special responsibilities, but that makes them more corporatist, not less.)

Corporatism’s easy — you just get the leaders of society’s various bodily organs in a room and work the sucker out.  It’s especially easier to impose regulations on a few big players, who can foot the bill or pass it on, than on a near-infinite number of small players. That’s one reason modern liberals tend to accept corporatism when they should know better.

One sturdy obstacle to corporatism, you’d think, would be the U.S. Constitution. It’s written down, relatively hard to change, and incorporates several specific anti-corporatist ideas, like the notion of equal protection, universal (equal?) rights and democracy.***  That is why it’s alarming when the “constitutional scholar in the White House” seems to advance a novel constitutional argument that is grounded quite explicitly in corporatism. Here is President Obama from his press conference last Friday, explaining why he feels justified in making an end run around the House of Representatives and imposing his own immigration policies through executive action:

THE PRESIDENT: Wendell, let’s just take the recent example of immigration. A bipartisan bill passed out of the Senate, co-sponsored by not just Democrats but some very conservative Republicans who recognize that the system currently is broken  …

And so we have a bipartisan bill, Wendell, bipartisan agreement supported by everybody from labor to the evangelical community to law enforcement. So the argument isn’t between me and the House Republicans. It’s between the House Republicans and Senate Republicans, and House Republicans and the business community, and House Republicans and the evangelical community. I’m just one of the people they seem to disagree with on this issue.  …

The point is that on a range of these issues, whether it’s tax reform, whether it’s reducing the deficit, whether it’s rebuilding our infrastructure, we have consistently put forward proposals that in previous years and previous administrations would not have been considered radical or left wing; they would have been considered pretty sensible, mainstream approaches to solving problems. ….

And in circumstances where even basic, common-sense, plain, vanilla legislation can’t pass because House Republicans consider it somehow a compromise of their principles, or giving Obama a victory, then we’ve got to take action.  Otherwise, we’re not going to be making progress on the things that the American people care about. [E.A.]

Maybe we shouldn’t read too much into a press conference, but Obama certainly seems to be groping for a formal argument here that would set out the circumstances in which he is justified in bypassing the legislature described in the Constitution — Congress — and acting on his own. The argument would be: “Where the key interest groups of society — business, labor, religious organizations and the MSM (who else is going to anoint a bill “common sense … legislation”?) — are lined up behind a policy,  then if Congress doesn’t act, the President can.

In short, it’s an argument for bypassing archaic elected legacy institutions when they stand in the way of modern government by interest group elites.

I urge President Obama to elaborate on this sophisticated theory in the coming weeks, because I don’t think there’s much chance the Supreme Court will buy it. More likely it’s sufficiently alarming that the Court majority will feel compelled to somehow accept a case in order to reject it. …

Backfill: See also Ross Douthat and Glenn Reynolds, who mince no words …


**–The vision is “corporatist” because it analogizes society with a body, or corpus, with different institutions and sets of people performing different specialized, orchestrated roles, like bodily organs (as opposed to, say, seeing U.S. society as 300 million free, individual citizens exercising equal liberties and moving in and out of the marketplace in various unpredictable roles of their own choosing).

*** — Even the republican, representative aspects of the Constitution aren’t corporatist, in that they ground representation in the individual franchise. We don’t have a Senator from Labor or a Senator from Silicon Valley or a  Senator from Wall Street. … OK, Wall Street, maybe (Schumer, D-NY). But nothing formal.

Mickey Kaus