THE ATTORNEY GENERAL OF TEXAS
Ken Paxton

Texas Attorney General Ken Paxton: Lawlessness is Obama's Real Legacy

Monday, January 30, 2017 – Austin

When President Obama spoke at his first inauguration, his words were buoyed by promises of hope and change. Eight years later, I can attest that the president was at least half right. The path America journeys down has indeed veered from what came before. The destination, however, is no promised land.

President Obama took it upon himself to recreate the United States in his own image. He acted often in spite of Congress and without constitutional authority. He quipped. He clawed. He pontificated until the primary check on his audacity was his own sense of shame.

I do not exaggerate when I tell you that President Obama’s greatest legacy will be his administration’s lawlessness and the precedent it set.

To give you an idea of what I mean, let me describe what my office has confronted in the last two years since I became Texas attorney general.

First, the Obama administration bore almost no respect for the private market.

According to the Government Accountability Office (GAO), the outgoing administration finalized 570 “major” rules in its first seven years, so-called because they each inflicted a $100,000,000 cost on the U.S. economy or had a significant adverse impact on productivity and/or employment. President George W. Bush, conversely, had churned out 410 “major” rules by the same point in his presidency.

A report published by the Heritage Foundation calculated that the regulations implemented under President Obama drained the economy of $108 billion annually, the brunt of which was borne by the American worker.

The left may dress up the regimentation of the national economy as being good for social welfare, but in practice each imposition locks the market in place, away from any cheaper alternatives. The result is a higher cost of living but fewer opportunities by which to afford it.

Second, President Obama ramped up the federal government’s intrusions into matters of local concern.

Conservatives have warned for years that cooperative federalism—the acceptance of federal funds—presents a grave risk to our Constitution. Grant money is, after all, a form of public welfare, which creates a sense of dependency. Too much and the states become beholden.

President Obama did not create this problem, but he certainly exploited it.  His administration repeatedly used the threat of federal funds to force policies that the federal government could not otherwise have demanded under its enumerated powers.

On New Year’s Eve, for instance, my office won a nationwide preliminary injunction blocking the Obama administration’s new health rules, which conditioned Medicaid and Medicare funding on a medical provider’s willingness to perform sex change operations and abortions. Absent our court victory, Texas would have risked losing $42.4 billion a year in Medicaid funding unless it complied with the mandate.

Third, the Obama administration has upended the structural checks that once kept government confined to its proper role.

The nature of government ensures that no matter who is in power, public officials will overreach. Some are more frequent rule-breakers than others, but the temptation to take shortcuts exists regardless of party or philosophy. The remedy is what Madison described in Federalist 51: “Ambition must be made to counteract ambition.”

President Obama rejected the American Founders’ wisdom. He viewed resistance to his political agenda as a moral failing embedded inside our constitutional order. He therefore made a great spectacle of using his “pen and phone” to circumvent whatever obstacles Congress or the states established.

His strategy was successful in that many of his policy ideas gained a foothold in the national economy, but his strategy also legitimatized unitary behavior from officeholders nationwide. He turned lawlessness into a mark of moral government.

This abuse of power raises the question: how do we defend our liberty from government excess when all the institutions which would normally push back—the market, the states, and internal checks—have been compromised?

President Obama took the United States down a road it never should have traveled. When unitary power becomes a habit, not an aberration, tyranny looms not far around the corner.

I have seen what wasteland looms on our existing path. With President Donald Trump, we at least have hope that the country will return to the trail blazed by its Founders.