House speaker John Boehner’s lawsuit against President Obama strikes a high-minded blow for the rule of law. Gamesmanship? Perish the thought. “This isn’t about Republicans and Democrats,” the Speaker thundered on the House floor. “It’s about defending the Constitution we swore an oath to uphold.”
Well, that’s a relief. For a moment there, I was worried that it might be a “political stunt,” which is what the soon-to-be defendant sloughed it off as.
In urging the House to approve the resolution authorizing the suit, which it did in a party-line vote Wednesday, Boehner asserted that Congress needed to act — er, well, let’s try that again. He asserted that Congress needed to plead with the judiciary to act because President Obama has overstepped his constitutional bounds. It takes a lawsuit, we are told, to check what the resolution describes as certain “actions by the President and other executive branch officials inconsistent with their duties under the Constitution of the United States.”
Good to know it’s all about duty and constitutional propriety, not tactical considerations. But I do have one question: If the lawsuit is really about vindicating the Constitution, why didn’t the Speaker include the president’s immigration lawlessness?
Have a look at the resolution, here. It authorizes Boehner to sue Obama and his underlings for actions inconsistent with their “duties under the Constitution and laws of the United States.” But read on through the fine print — the gobbledygook of statutory citations — and you find that the lawsuit will be narrowly limited to executive overreach with respect to Obamacare.
Don’t get me wrong: The president’s implementation of the Patient Protection and Affordable Care Act is, inarguably, a solid example of his lawlessness. In Faithless Execution, I outline the dozens of executive diktats: waiving this provision, amending that one, manufacturing taxes and criminal penalties, and generally usurping congressional power.
But what about the president’s other serial statutory violations and unconstitutional usurpations? His systematic dismantling of federal immigration law outstrips even Obamacare in its brazen illegality. Yet, though this fact is well known to Boehner, a reference to immigration is nowhere to be found in his resolution or his lawsuit.
That probably surprises you. It surprised most of the journalists I spoke with this week. Like most Americans, they see that Boehner timed the resolution approving the lawsuit to be voted on at the height of the border crisis. They hear him weave condemnation of the president’s failure to secure the border into his riffs about Obama’s refusal to execute the laws — the theme he pounds when discussing the lawsuit. They naturally assume that immigration must be a cornerstone of his claims about Obama’s lawlessness.
But it’s not.
On Thursday, conservatives forced the House leadership to pull their preferred, pathetic border “enforcement” bill, which would have made matters worse. Trying to put the best face on his withdrawal of the proposal, Boehner explained:
This situation shows the intense concern within our conference — and among the American people — about the need to ensure the security of our borders and the president’s refusal to faithfully execute our laws [emphasis added].
It is good politics — not that the Speaker has any interest in such crass considerations — to highlight the connection between the border crisis, the non-enforcement of laws barring illegal immigration, and the Obama administration’s overarching lawlessness. Obamacare has been unpopular for years, but it is no coincidence that Boehner chose this week for the vote on his lawsuit: New polling shows that more than two-thirds of Americans disapprove of Obama’s immigration policies, and that a strong majority of the public wants national policy to be focused on blocking and deporting illegal aliens.
But why isn’t immigration in the lawsuit?
Why will this bold action, compelled by the GOP’s unwavering fidelity to the Constitution, breathe not a word about Obama’s breathtaking usurpation of Congress’s power to make immigration law? Of Congress’s plenary constitutional authority to determine the conditions of legal presence in the United States, to prescribe immigration violations, and to confer such benefits as residency and work authorization on non-Americans? The lawsuit will say nothing about the president’s systematic gutting of congressional immigration statutes. Nor will it make a peep about what one federal judge has aptly described as the executive branch’s knowing complicity in criminal conspiracies to smuggle illegal-alien children into the United States.
Why not? For the same reason that there was conservative mutiny over the GOP leadership’s awful border bill on Thursday. Among countless flaws, the bill glaringly omitted action to reverse Obama’s unilateral Deferred Action for Childhood Arrivals program — a lawlessly decreed amnesty for young illegal aliens. Sprung from the president’s overall refusal to execute immigration statutes faithfully, DACA is the proximate instigator of the ongoing border crisis.
DACA also has many fans among the GOP leadership.
See, for all their huffing and puffing about lawlessness, Beltway Republicans are with Obama, not with the country, on mass legalization for illegal aliens. They don’t like the border’s being overrun, of course; but for years they have been quite content with non-enforcement of the immigration laws. Washington may as well hang up a neon sign broadcasting the message that most any alien who manages to get here can stay here.
As usual, for Democrats, this non-enforcement is a well-thought-out strategy to tilt election demographics in their favor; while for Republicans, it represents wishful thinking at best, and, more likely, sheer stupidity. Their strategists tell them Hispanics are the dynamic electoral constituency that will grow to love the GOP if only Republicans show “compassion”; their Chamber of Commerce patrons squeeze them to keep open the low-wage-labor spigot; and they convince themselves that millions of unassimilated, low-skill, high-maintenance, natural Democrats are really Republicans waiting to happen.
However boneheaded this calculation may be, the thing to bear in mind is that it is a political calculation.
To summarize, Boehner is bringing a dubious lawsuit because of a political calculation: There is too much risk in meaningful legislative opposition to the president. He has sprung the lawsuit while the border is being overrun by illegal aliens because of a political calculation: Heightened public attention to a derelict president now demands a response — or at least the appearance of one. And, despite all his high dudgeon about “defending the Constitution,” he has quietly left immigration out of the lawsuit because of a political calculation: The president’s lawlessness may be the best route to the Beltway GOP’s vision of immigration “reform.”
Almost makes the lawsuit seem like a political stunt.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book, Faithless Execution: Building the Political Case for Obama’s Impeachment, was released by Encounter Books on June 3.