NATIONAL REVIEW ONLINE
JUNE 28, 2014 4:00 AM
Boehner Is Bringing a Whistle to a Gunfight
A congressional lawsuit is precisely the wrong weapon to combat Obama’s lawlessness.
By Andrew C. McCarthy
You wish you could call the police. But the neighbor who is robbing your house at gunpoint is the police. You are stupefied, so inconceivable does it seem to you that the man sworn to uphold the law could be an outlaw.
Yet, the architects who designed your house not only conceived of that danger, they took precautions. As a result, you not only have your own arsenal of emergency firepower; you’re also in charge of all the ammunition. See, the architects hoped we’d always have good, honorable police, but they didn’t make your life depend on it. They knew the police had to be strong to protect us, but that this very strength could potentially destroy the whole community if the guns and badges ever ended up in corrupt hands. So while hoping for the best, they planned for the worst: The police have to come to you for the bullets if their guns are to be of much use; and you ultimately determine whether they get to keep their badges.
So as the police rob John Boehner’s House, just like they’re robbing every house in the neighborhood, what does he do? Does he grab his gun in self-defense? Does he lock the ammo vault? Does he start yanking the badges of the lawless beat cops and warn police headquarters that the commissioner could be out of a job, too, if things don’t change?
No. Boehner instead decides to call his neighbor, the referee at the town gym. The whole community respects the ref. When we come to his court, he makes all the calls and, win or lose, the players know the game was fair and square. But the ref cannot force the police to follow the rules. And he doesn’t have a gun, just a whistle.
This, in a nutshell, is the theatrical exercise in futility that is House Speaker Boehner’s proposed lawsuit against our rampantly lawless president. Boehner and the Congress hold the tools that could end, or at least dramatically reduce, the administration’s onslaught. Instead, the speaker prefers to bring a whistle to a gunfight. Paralyzed by fear of catcalls from Obama’s slavish media, Boehner eschews the use of his own armaments in favor of turning to the courts — apparently, in hope that a judge will pronounce with stentorian flourish that which is already abundantly obvious to all with eyes to see: The president of the United States is in gross violation of his solemn oath to execute the laws faithfully, usurping congressional power in a systematic assault on the separation of powers that safeguards our liberties.
The speaker will persevere in the lawsuit gambit because his flanks are covered. On his left, Jonathan Turley thinks the suit has a fighting chance to, er . . . well, Professor Turley is not exactly clear on what exactly it would accomplish. But as a devotee of the Left’s preference of a tutelary judiciary over republican self-governance, he’s all for it. And on the speaker’s right, there is George Will.
The estimable Mr. Will last week offered an uncharacteristically feeble take on “Stopping a Lawless President.” He urged what turns out to be the Boehner strategy of bringing a lawsuit that, purportedly, would halt the “institutional derangement driven by unchecked presidential aggrandizement” that Will correctly sees as a “structural distortion threatening constitutional equilibrium.” Despite accurately diagnosing the problem, Will’s column distorts the constitutional equilibrium he undertakes to heal.
Let’s assume, for argument’s sake, the occurrence of the several miracles Will needs on the road to a hoped-for judicial rebuke of the president: The House expeditiously approves the lawsuit; a suit is instantly filed; it is not assigned to one of the hundreds of like-minded progressives Obama has appointed to the bench; that judge ignores the Supreme Court’s jurisprudence on standing to sue in order to reach the merits; and the administration notorious for stonewalling Congress and scoffing at judicial setbacks decides to be a cooperative litigant – such that maybe the judge can issue a ruling, oh, sometime before the 2018 midterms. What would this ruling accomplish? According to Will, it would serve as a bold “judicial declaration that Obama has violated the separation of powers.”
Like Mr. Will, I fancy myself an old baseball guy, so let me respectfully point out that when the batter swings and misses, the umpire never screams out “Strike!” It is undeniably apparent to the pitcher, the hitter, and all 50,000 fans in the stands that we have a strike. We do not need a gratuitous certification of that fact from the official.
As I’ve catalogued in Faithless Execution, there is nothing ambiguous about the vast run of President Obama’s lawlessness. We’re not talking about a backdoor curve on the black; these are arrant violations. Indeed, the administration does not deny its illegalities, it rationalizes them — contorting the “prosecutorial discretion” doctrine into a license to ignore and rewrite statutes; employing an attorney general who exhorts state attorneys general to flout laws that contradict Obama pieties; and so on. When a storeowner finds his shelves empty, he and everyone else know he’s been robbed; he doesn’t need a lawyer in a black robe to say, “It is hereby decreed that robbery has occurred.”
More important, as a response to executive lawlessness, a lawsuit is a non sequitur. When a president is running roughshod over the law, it is not the law itself that needs vindication — it is the faithful execution of the law. What makes the law the law is its legislative enactment; it needs no judicial imprimatur to command our compliance. As Jefferson and Lincoln understood, the judicial branch is mainly there for the resolution of private disputes, not political controversies. Congress does not need a court ruling to conclude that its clear statutes have been violated. It did not, in 1974, require an advisory judicial opinion that Richard Nixon had attempted to obstruct justice and abuse the IRS in order to establish that these derelictions had occurred.
The problem we have at the moment is not a lack of certainty about what the law is; the problem is the executive’s refusal to execute the law faithfully. The federal courts are impotent to address that — as several judges who have ruled against the Obama administration over the last six years have learned. Courts have no capacity to enforce their judgments. Law enforcement is a plenary executive power, and thus any court judgment against Obama would have to be enforced by . . . Obama. That is not going to happen.
A judge’s ruling that the president is violating the law would have exactly the same practical effect as Speaker Boehner’s whining that the president is violating the law: none. Neither Mr. Will, nor Speaker Boehner, nor the lawyers on whom they rely offer any answer to this fatal flaw in their lawsuit gambit.
Another fatal flaw is the aforementioned “standing” precedents. In order to be heard in court, a claimant must have legal standing to bring the case — i.e., have a concrete injury caused by a legal wrong as to which the court is the appropriate forum for redress. The Supreme Court thus frowns on lawsuits by legislators alleging that presidential overreach has injured Congress’s institutional power. Such suits do not involve concrete, personal injuries; and, unlike private citizens for whom courts are the only protection against executive lawlessness, Congress has its own superior constitutional weapons for reining the president in: the power to deny funding that the administration needs and the power to impeach wayward executive officials.
In a vain effort to surmount the standing barrier, the lawyers on whom Mr. Will and, it seems clear, Speaker Boehner are relying have prescribed a four-part test that conveniently jibes with both the GOP’s straits (i.e., control of only one house of Congress) and the skewed Will-Boehner take on congressional power. Under the latter, standing requirements would be relaxed if, in Will’s description, “Congress cannot administer political self-help by remedying the presidential action by simply repealing the law [that the president has violated].” Boehner puts it more succinctly: “There is no legislative remedy.”
Sorry, but this is nonsense. Congress absolutely has the “self-help” capacity to remedy presidential malfeasance: It can repeal or amend laws, refuse to fund an executive agency’s illegal enforcement action, or impeach executive officials — from the lowly subordinates who carry out lawless actions up to the president himself. There is no legal impediment stopping Congress from taking these measures; there is a political impediment stopping Boehner. The speaker either does not have the votes necessary to get Congress to act; or he may have them — at least enough of them to pass House bills to defund or impeach, putting Senate Democrats in the unenviable position of defending administration lawlessness — but he is scared to death of being demagogued by the president’s media adjutants. That may be a good reason to find a more effective Speaker. It is not a good reason to undo the Constitution’s standing requirements.
It is worth remembering why we have those requirements, especially in matters that involve political rather than personal injury. The Framers gave us a Constitution for a free people confident in its capacity for political self-governance. Consequently, the great public-policy questions, including those that implicate our governing framework — the separation of powers that prevents tyranny — are supposed to be determined by elected officials who answer directly to the citizens. When those questions are punted to the politically unaccountable courts, we are essentially asking to be ruled by lawyers who cannot be removed from office if they get these questions wrong.
In 1997, several lawmakers tried to sue the Clinton administration because, they claimed, the new line-item veto law usurped Congress’s power to enact and amend law. In Raines v. Byrd, the justices refused to entertain the suit. They noted the “natural urge to proceed directly to the merits of this important dispute and ‘settle’ it for the sake of efficiency and convenience.” But the urge was resisted because, no matter how clear the constitutional violation may have been, the lawmakers were claiming no personal injury, just a deprivation of political power that Congress itself could rectify by appropriate legislative action. Courts, the late Chief Justice William Rehnquist explained, had to heed the limits of their “countermajoritarian” power of judicial review in a democratic society. That power is tolerated only because of
the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action. It is this role, not some amorphous general supervision of the operations of government, that has maintained public esteem for the federal courts. [Emphasis added.]
It was only the next year that the justices did invalidate the line-item veto (in Clinton v. City of New York), precisely because they were presented with a claim from plaintiffs who had been harmed by it, not from federal legislators endowed with their own constitutional means to cut the president down to size.
In unfitting hyperbole, Mr. Will concludes that without judicial intervention against Obama, “the people’s representatives [will have] no recourse short of the extreme and disproportionate ‘self-help’ of impeachment.” Even if it were true that this is the only option, the Framers saw the separation of powers — Will’s “constitutional equilibrium” — to be the guarantor of individual liberty. A systematic executive attack on it, which Will concedes is occurring, is the very reason they included the Impeachment Clause. There is nothing extreme or disproportionate about administering a remedy to the exact disease it was prescribed to cure.
But Will’s assertion is clearly not true. The House can refuse to provide funding streams to, for example, Homeland Security agencies that do not enforce the immigration laws; Justice Department lawsuits that extort sovereign states into adopting Obama pieties; an IRS that shreds the First Amendment (then shreds the evidence that it did so); or an EPA that purports to destroy the coal industry under the guise of “interpreting” (i.e., rewriting) the Clean Air Act. It is nice to hear that Speaker Boehner — finally — says he’s ready to do something about Obama’s lawlessness; but it is hard not to notice that he’s been content to pay for it for years.
Moreover, as I’ve argued in Faithless Execution, the House should not impeach President Obama unless and until the public supports his removal. The goal should be to create a political climate in which executive lawlessness is deeply discouraged; that could be accomplished if some defunding were accompanied by the impeachment of obnoxious subordinate officials who execute the administration’s lawless policies.
It cannot be accomplished by a lawsuit that simply reinforces the president’s assessment that his opposition is unserious.