The Constitution vests Congress with the power to discipline the President. What sense does it make for Congress to seek such disciplinary action from the judicial branch, which has no power to enforce its opinions without the President’s aid? The Constitutional obligation to hold the President accountable for dereliction of duty clearly follows the responsibility for impeachment and removal. The U.S. Constitution gives that responsibility to Congress, not the Supreme Court. (Why de facto government (Tyranny) is replacing the Constitution)
The words quoted above are from an article I wrote in March of last year. I thought of them recently as I was reading a report that “Michele Bachmann says House conservatives are preparing to sue President Obama for executive overreach in response to his threats of unilateral action on a host of issues.” Apparently Bachmann and some others in Congress believe that “legislation allowing lawmakers to hire an attorney…can force the president to act under the Constitution.”
The key word here is “force”. Bachmann and her colleagues need to remember that the Judicial Branch doesn’t have any. As Hamilton observes in Federalist 78:
The judiciary…has no influence over either the sword or the purse; no direction of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive even for the efficacy of its judgments.
Obviously, in contrast with many politicians these days, Hamilton took pains to think things through.
Let’s assume, for instance, that Bachmann and her colleagues succeed in passing the legislation they seek. (Alright, it’s unlikely given the fact that the Democrats presently control the U.S. Senate. But “for the sake of the argument…” as they say, let’s ignore that difficulty.) Let’s further assume that their case gets to the Supreme Court, which issues an opinion supporting their view that the President’s actions are unconstitutional.
What happens next? Perhaps Obama rolls over, bows to the Supreme Court, and retracts his Executive orders. That might happen, or it might not. Let’s say that it doesn’t happen. Instead Obama rejects the Court’s view. To support his stand, he argues that his actions are necessary in order establish justice, insure domestic tranquility and promote the general welfare of the country.
Let’s say he further argues that, by failing to pass laws essential for achieving those ends, Congress has endangered the nation, exacerbating a serious situation which, without his timely preventive measures, threatens to plunge the country into a dire state of national emergency.
If the issue in question is immigration, for example, I think it’s very likely that such arguments would be sufficient to allow Congressional Democrats to back Obama, and use the whole situation as a new stick with which to beat up on the recalcitrant, reactionary forces in the GOP, who they claim are endangering the country. If the past is precedent, the quisling GOP leadership will eventually be persuaded to join their jeering chorus, stepping forward with a pretense of statesmanship to put the querulous GOP diehards in their place.
The problem is that the whole sequence of events would set a precedent for successful dictatorship that Obama (and the elitist faction he serves) would abuse for the remainder of his occupation of the White House. It would also directly confirm, for better or worse, the ultimate impotence of the judicial branch (especially when dealing with disputes between the other branches), which Hamilton’s lucid thinking foreshadows.
The approach proposed by Bachmann and her colleagues reminds me of the emails I get occasionally from people wondering why the House doesn’t just cite Obama for contempt of Congress and send somebody to arrest him.
I respond with a question, “And who would that “somebody” be?” The Constitution vests the whole executive authority of the U.S. government in the President of the United States (in the person not, as some people carelessly say, in the office.) That person wields the Executive power of the U.S. Government.
Strictly speaking, that person is the Executive Branch. All the Departments, agencies and forces that make up the Executive are, as it were, the organs, limbs, nerves and sinews of that person. For as long as that person is vested with the executive power of the U.S. government, any move to arrest or otherwise physically constrain, menace or attack that person is an assault against the government of the United States. It is, therefore, an act of insurrection.
As the Commander in Chief of the armed forces of the United States, the person the Constitution vests with the U.S. government’s executive power has warrant to repel an attack on his person as he would any other attack on the U.S. government.
Bachmann and her colleagues need to think this through. They need to ask themselves the key strategic question: If we succeed in getting a favorable opinion from the Supreme Court (which is no foregone conclusion) what do we do if Obama simply refuses, on Constitutional grounds, to enforce it?
There is only one answer: Appeal to the people. But if the efficacy of your action depends in the end on an appeal to the people, then from the outset everything you do you must do with a view to making that appeal. The nature of your arguments, the timing of your actions, all must have the appeal to the people in mind. But by going through the judiciary you lose control of almost every aspect of the situation, especially the timing, which is most critical.
Why? Because elections are the only Constitutional means of appealing to the people effectively. And those elections can have a forceful effect on the situation only if they might result in majorities in the U.S. House and Senate sufficient to impeach and remove a President from office.
When you think it through, building these impeachment/removal majorities is the only Constitutional way to “force” the Executive to respect the Constitution. The Courts can’t do it. And even the people can’t do it, constitutionally, except at election time.
This is precisely the thinking that led me to propose the impeachment/removal strategy for the 2014 election. Instead of spinning their wheels in an ineffectual appeal to a judicial branch that is ultimately powerless to enforce its opinions, Bachmann and her colleagues should take the impeachment removal pledge, and campaign as hard as they know how to get every like-minded Senator and Representative they can to do likewise.
Combined with an energetic grassroots mobilization of voters demanding that candidates for either house of Congress take the pledge, their campaign would help to make the 2014 election an effective vote of no-confidence in Obama’s lawless, unconstitutional administration. Instead of risking a precedent for ambitious, lawless dictatorship, it would set a precedent that restores government of, by and for the people, through elected officials honestly pledged to represent them. Given the gravity of the present crisis, this would be nothing short of saving America’s liberty, for us and our posterity. Will Bachmann and her colleagues rise to the occasion?