Judge Andrew P. Napolitano,
Over the New Year’s weekend, President Barack Obama’s chief policy adviser and closest strategist, Valerie Jarrett, told a talk show host that her boss would have a happy legacy because there was an absence of scandal in his administration.
When first I heard this preposterous claim, I thought I had misheard it. Yet it is apparently true that President Obama and his team somehow can overlook recent history and behave as if events with which we are all familiar never happened.
Here is the back story.
When Obama became president in 2009 and enjoyed significant Democratic majorities in both houses of Congress, he and his colleagues devoted themselves entirely to an issue nowhere in the Constitution — health care. They did not address other issues dear to them and their base, such as guns, abortion, taxes, war, jobs and civil liberties. Rather, they sought to alter radically the relationship of the federal government to every person in America by imposing upon each of us the obligation to purchase a product — namely, health insurance — whether we wanted it or not.
The abominable statute they enacted, which has caused millions of folks to lose their primary care physician and millions more to see their premiums skyrocket and still millions more to see their full-time jobs become part-time, has acquired the nickname Obamacare.
Instead of reducing taxes or regulations or spending so more folks would have better-paying jobs, the president and his folks were determined to tell us all how to stay healthy. Obamacare passed on a party-line vote, with not a single vote to spare in the Senate.
At the time it was enacted, the president argued vociferously that the financial consequence of not obtaining health insurance — the penalty for disobeying the law — was not a tax. He made that argument because he had promised Democrats — many of whom lost their congressional seats for going along with his utopian experiment — that he would not raise taxes to accomplish his purposes.
When the statute was challenged in the federal courts and the various challenges were consolidated before the Supreme Court, the challengers did not dispute the claim that the penalty was not a tax. A court cannot consider arguments or evidence not put to it. For instance, in an automobile accident, if all eyewitnesses state that a traffic light in question was green at the time of the collision, the court may not find that it was red.
Yet notwithstanding agreement among the parties before the Supreme Court and notwithstanding the absence of any evidence that the penalty was a tax, the Supreme Court made new law by declaring this non-tax to be a tax and then ruling that Congress can tax anything it wants — so Congress can force you to purchase a product you don’t want by taxing you if you fail to make the purchase.
None of this is new. It is the president’s known legacy. It is a legacy of the colossal failure of the central planning of one-fifth of the economy. It has resulted in an expansion of federal powers and a reduction in the availability of health care providers and is yet another glaring rejection of the Constitution as the supreme law of the land.
While all of this was going on, the scandals Jarrett overlooked were brewing. Operation Fast and Furious, which began in the George W. Bush administration, exploded under Obama, when the guns the feds intentionally had let slip into the hands of Mexican gangs were used to kill one of their own.
Then came Libya, where heavy armaments the feds secretly had passed into the hands of terrorists masquerading as rebels were used to kill the U.S. ambassador and topple a friendly government.
Then came the seizure of telephone records of journalists critical of the administration by the Department of Justice, which secretly convinced a federal judge that talking to a whistleblower and reporting on his questionable behavior somehow involved reporters criminally in that behavior.
Then came the targeting by the IRS of conservative advocacy groups by denying them tax-exempt status for political reasons.
Then came the Secret Service scandal in which dozens of agents were caught in sexual encounters on foreign trips in hotels where the president was staying — encounters that involved the loss of laptops and itineraries and jeopardized the president’s physical safety — and two directors lost their jobs.
Then came the Edward Snowden revelations that the government was capturing every keystroke of every person using every computer and mobile device in the United States yet was still failing to keep us safe and that a senior Obama official had lied about this under oath. And all this was done without the approval of Congress, using a secret court that rationalized its way around the Constitution.
While all this was happening, the president was secretly using drones to kill Americans and others in foreign lands — folks never charged with crimes — using laughable legal authority as justification. Also, then-Secretary of State Hillary Clinton was exposing state secrets — including the names and whereabouts of undercover American agents — to friend and foe alike, and the FBI declined to recommend prosecution. And while Clinton was under investigation, her husband, former President Bill Clinton, had a private meeting on an airport tarmac with the attorney general — whom he had once appointed a U.S. attorney — at which they claim they discussed their grandchildren.
Which legacy is worse, failure or scandal? Is it any wonder Donald Trump tapped into the raw nerves of the folks the president and the Democrats forgot about and rode their anger to victory?
Americans today are less free, less prosperous, less safe and trillions more in debt than we were eight years ago. Can Trump effectively change course after so much damage has been done? We soon will know.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey.