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John Boehner’s Legal Lesson
At least the Obama suit will pull back a bit the ignorant pall of our political culture.

(Art elements: Getty Images, Dreamstime)

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‘Speaker John A. Boehner’s lawsuit against President Obama,” the New York Times confirmed yesterday evening, “will focus on changes to the health care law that Mr. Boehner says should have been left to Congress.” Thus was answered a question that has been percolating for a good month now: On what grounds will the president be taken to task?

That Obamacare and not immigration is the proximate target should surprise nobody who is attuned to contemporary politics. Health reform remains a rich source of opportunity for the GOP; immigration an electric fence. But to obsess about the specifics of the assumpsit would be a mistake. As he has made clear, Boehner’s complaints are fundamental: first, that the Obama administration has taken to rewriting the law for its own political gain; second, that the Democratic Senate, being evidently more jealous regarding its political agenda than its constitutional prerogatives, is content to sit by and permit the usurpation. The aim here is less to reverse the particular grievances enumerated in the suit, and more to create a general means by which divided and self-abnegating Congresses might check executive abuse without being presented with a choice between impeachment and impotence. Boehner, in other words, is hoping to rein Obama in wholesale.

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Watching the genuine disbelief with which the salvo has been met on the left serves, oddly enough, to illustrate how important pushback in this area is — and, too, to remind us that separation of powers is a principle for which each generation must fight. Demonstrating its unmatched genius for meeting every criticism with a contemptuous slogan, Obama and his team have responded to the indictment by claiming ad nauseam that the president is being sued for “doing his job.” That this excuse is still viable is utterly remarkable. In the last few years, the White House has reflexively insinuated that “checks and balances” are not so much the foundation of the American settlement as an expendable and academic notion, relying for cover upon a host of obedient media allies who were only too happy to assure their readers that limits on executive power were merely the preserve of fringe legal theorists like the nine justices who currently sit on the Supreme Court. No defeat, it seems, will be sufficient to cow them.

There is little that is genuinely new in politics. One can all too easily imagine Charles I telling the audience at Westminster Hall that he was being executed for “doing his job.” Instead, Charles faced the ax for precisely the same reason that Barack Obama will find himself in court: for usurping powers that were not his, and for undermining the rule of law and parliamentary representation that are the birthright of every free man. In this, the rules are as clear as they can be, Articles I and II of the Constitution confirming that the executive is not permitted to write his own job description. Explaining his case, Boehner suggested that “if this president can get away with making his own laws, future presidents will have the ability to as well,” and noted, too, that “the House has an obligation to stand up for the legislative branch, and the Constitution.” That the statute on which Boehner has based his petition is an unpopular one does nothing to change this axiom. America law depends neither upon public opinion nor on the whims of the fashionable set for its integrity. Suppose that a Republican president had been returned two years ago. Would he be now sanctioned to rip the rulebooks to pieces if sentiment were in his favor? Nah.

Still, in any area that is complicated by partisan politics, the charge of opportunism will be a potent one. Obama plays the just-doing-my-job game largely because he knows he can get away with it. Depressingly, the most common reaction to the Boehner’s litigation has been incredulity. “I don’t quite understand,” Politico’s Ben White tweeted, “GOP hates employer mandate and is suing Obama over not enforcing it?” Picking up this line of inquiry, ThinkProgress sardonically noted that “House Republicans will sue Obama because he’s not implementing Obamacare fast enough.” Markos Moulitsas got in on the action, too, tweeting, “If Boehner is successful in lawsuit against Obama, he will . . . force FASTER implementation of Obamacare. Genuis! [sic]” As one would expect, Vox was thoroughly perplexed. “It’s as if Pat Riley was suing LeBron James to force him to begin playing for the Cleveland Cavaliers sooner,” wrote Ezra Klein.

Thus, in one fell swoop, did the chattering classes abandon the mantra that “It’s. The. Law” — permanent, immutable, and beyond critique — and took to inquiring instead why anybody who was so firmly set against the program would so much as dream of demanding that the president not be licensed unilaterally to rewrite it. In doing so, they showed us something rather interesting about themselves: that, power and advantage being paramount, they believe the rules to be conditionally virtuous — great when they aid in the advancement of an agenda; but no great thing in and of themselves. Fewer habits have better demonstrated this fashionable subordination of means to ends than the president’s tendency to respond to accusations of imperialism with the non-sequitorial insistence that he is “fighting for the middle class,” which abracadabra-sobriquet is evidently intended to set outcome against process and to bolster the oft-proposed notion that, unlike those who came before him, this president cannot be expected to wait for acquiescence.

Boehner has little chance of prevailing in his action, the perennially thorny issue of legal standing being almost certain to ensure defeat. And, as Hot Air’s Allahpundit observes, this will carry with it some serious trouble. If the plaintiffs are rebuffed, he augurs somberly, “Obama will spin it as legal vindication for his executive power grabs, which of course means more power grabs.” Indeed so. But one wonders what one really has to lose? What keeps the United States working is its participants’ healthy respect for the law. Without that, only parchment barriers stand in the way. At present, Obama is unrestrained, happily enjoying the inherent advantages of the executive branch and secure in the knowledge that his antagonists are faced with a choice between doing nothing and declaring all-out war. John Boehner may not have worked out a way to make bring his rival to a halt, but he may have found a promising middle course, introducing into the culture a little Schoolhouse Rock to take didactic aim at the incessant reruns of The Obama Show. More of this, please — win, lose, or draw.

— Charles C. W. Cooke is a staff writer at National Review.



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