And I do think this is a constitutional scandal. Suppose the next Republican president and there will be another Republican president, comes into the press room someday and says, "You know, I really think the capital gains tax does not serve the national interest, so we're just, as an act of executive discretion, going to quit enforcing that for a few years."Bob Woodward broke in and said something — in the slow, strangely over-restrained manner he has — that made me laugh out loud:
That's not the rule of law.
It is in a way, but as you know, there is a strong other side on that. And we're at the moment here where people have to make decisions and this is an implementation issue. And the pre -- I think people are going to give him discretion.On re-listen, I laughed again. And then the third time, I said: "Actually, he's right"... if you understand what he's saying.
Now, trying to write this post, I'm not sure whether "It is in a way" meant "In a way, it is the rule of law" or "In a way, it is not the rule of law." When I laughed, I assumed the latter, the "is" being an affirmation of what Will had said, so Will's "not" was implied in Woodward's "is." I laughed because Will had been so firm, and Woodward seemed to agree, but with the weaseling "in a way." Then he added an acknowledgement of the "other side," which he called "strong."
And I'm not sure whether the "strong other side" was meant to oppose the statement that what Obama did is consistent with the rule of law or to oppose the statement that it is not the rule of law. You'd think reading the remainder of what Woodward said would clear that up, but as I read those next 2 sentences, I'm not sure whether they are meant to articulate the "strong other side" or whether he's moved on to another point.
Woodward might be brushing off the legal question and saying, whatever you and I might be able to say about the law, it doesn't much matter because the "people are going to give him discretion." That is: Obama is going to get away with it.
Or he might have meant to explain the legal issue: The question is whether the President is executing the law, and there's plenty of room for discretion in a President's decisionmaking about the scope of what is involved in implementing a particular statute, and most people, faced with Obama's implicit assertion that he's only executing the law, not writing new law, will see him as acting within the range of his discretion.
Or he might have been channeling the sort of legal attitude that says the rule of law is what you can get away with. Another way to say that is: