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Boehner’s lawsuit— folly, distraction or treachery?

Is he counting on its failure to void impeachment as an issue in the 2014 election?

When they have suffered an injury sensible people look for help from those who have the responsibility and power to do something about it. Americans are renowned for being a litigious people, but, even so, we generally know better than to go to court about things we know courts haven’t the responsibility or power to address.  If my wife commits adultery, it is still grounds for divorce in many states.  I go to court. But if she simply doesn’t love me anymore, going to court offers no remedy, even if the judge or jury would be inclined to agree that I’m a lovable guy.

In the deal that elevated him to his present position as Speaker of the House did  John Boehner bargain away his share of good old American common SmallLogoLTLsense? He has sure has been acting like it.  Barack Obama has repeatedly refused to abide by the oath he swore faithfully to execute the office of President.  The Constitution plainly commands that in doing so “he shall take care that the laws be faithfully executed”.  He has now embarked upon a systematic campaign to erase the borders and nullify the immigration laws of the United States.  Recent statements from his own cohorts in the bureaucracy and the Democrat leadership in Congress prove that he is doing so with criminal intent, which is to say with full knowledge that he is violating the supreme law of the land (i.e., the “Constitution and the laws of the United States…made in pursuance thereof”.)

Any such actions exactly fit the meaning of the phrase “high crimes” in the Constitutional provision that deals with impeachment.  The word “high” refers to crimes that are peculiarly occasioned by the powers incident to high governmental office.  These are crimes committed by those responsible for making, executing or applying the law, whose abuse of the power they wield is, in the first instance, beyond the reach of the law because they are, in that instance, the principal agents of its formulation, adjudication or execution..

Given that the President of the United States is in sole command of the Executive power of the U.S. Government the occupant of that office epitomizes the circumstances in which criminal abuses of power are beyond the reach of ordinary laws and legal processes.  All the forces that would, in the normal course of things, be brought into play to apprehend and arrest a malefactor are under the President’s command.  There is no other Executive Power in the land explicitly authorized by the Constitution to command those forces or any part of them.  Moreover, as long as someone remains President, a forceful move against his or her person constitutes an attack on the Government of the United States.  As such it is an act of war or treason against the United States, depending on the particulars.

Unless John Boehner has, along with his common sense, lost the faculty of reason, he should be able to think this through to its consequences.  So what are we to make of his decision to file a lawsuit against Obama for his failure to execute the laws? Assuming that he is able to persuade the Judicial Branch to issue an opinion consistent with his view of the President’s actions; and assuming that the Court were to demand that the President cease and desist, who would enforce the decision?  I have occasionally referred my readers to Hamilton’s cogent and plainly accurate observation that the U.S. Supreme Court “has neither force nor will.” (Federalist #78)  It must rely on the President to command the forces of the U.S. government, and on the U.S. Congress to mobilize the political will (and attendant forces at the State and individual level) of the American people.

As far as Boehner’s lawsuit is concerned, the latter fact points to its most embarrassing circumstance.  The Constitution of the United States explicitly vests the Congress of the United States with the responsibility and power to impeach and remove a sitting President.  Moreover, in conjunction with that power, existing law allows a sufficient majority of the Congress to decide, in effect, who will be the President’s successor. (Keep in mind that, with sufficient Constitutional majorities, the Congress may remove from office both the Vice-President and the President.  The Speaker of the House, selected by a simple majority of its members, thereupon succeeds to the Presidency.)

To be sure, the Congress cannot actually proceed with the trial and conviction of the President without the assent and co-operation of the Chief Justice of the Supreme Court, since the occupant of that office is the only official authorized to preside over the U.S. Senate “when the President of the United States is tried…”. (Article I, Section 3) (But, of course, a Congress whose composition reflects a sufficiently intense political will among the people can remove the Chief Justice. Also, though at present his designated replacement as Chief Justice is nominated by the President and confirmed by the U.S. Senate, nothing in the Constitution prevents the Congress from altering that procedure by law.  (Under the circumstances, a Congress so composed as to proceed conclusively with the process would also have sufficient majorities to override any Presidential interference.)

So when John Boehner acts as if he expects the U.S. Judiciary to call Obama to account for his crimes, all  the Speaker of the House really does is prove his own  contempt for the power and responsibility of the U.S. Congress, as it is presently composed.  In one respect, however, Boehner’s action makes sense.  If his intention is to use a favorable U.S. Supreme Court decision as part of an appeal to the people in the November midterm elections,  a decision by the U.S. Supreme Court that buttressed the view that Obama’s actions violate the supreme law of the land would certainly lend it credibility.  However such an appeal seems to be no part of the Speaker’s calculations.  When he announced his suit he took pains to say that “This is not about impeachment.”

Given his record, he may be going to court precisely because he expects the U.S. Supreme Court to opine that Obama’s actions are not unconstitutional.  Or, more probably, because he expects the Court to decline to act as arbiter in a dispute between the other branches.  In either case he could use the result to pretend that the issue of impeachment/removal has been taken off the table, and is therefore irrelevant to the 2014 elections.   Given the Speaker’s record as an Obama collaborator; and his proven inclination to pass some form of amnesty for illegal immigrants; and the fact that he and the rest of the GOP’s elitist faction leadership are openly warring against the Party’s intensely anti-Obama faction conservative grassroots, there is more than enough reason to suspect that the failure or dismissal of his lawsuit is his preferred outcome.

(Nota bene: the fact that the Court calls the Executive to account in particular cases that involve unconstitutional actions against individuals does not mean that it sees grounds to do so in a general dispute that formally engages the other two Branches of government as such, especially when the Constitution clearly gives Congress the tools to defend itself, and therefore the responsibility to defend the U.S. Constitution..  Doing so would thrust the Court directly into the political arena in a fashion heretofore held to be inconsistent with the impartial nature of the Judiciary’s presumptively non-partisan integrity.  Of course every other form of statesmanlike integrity is decaying in these times, so God knows what a majority of the present justices may do.)

If he pretends that the Court’s action or inaction settles the matter, Boehner sets a precedent for judging what constitutes a “high crime or misdemeanor” that effectively gives the U.S. Supreme court a veto over action by the House of Representative.  This is de facto amendment to the U.S. Constitution that obviates what the founders called a “due dependence” on the political will of the people.  In effect it removes from them the power to arbitrate disputes among the branches using the power of the votes they cast for the U.S. House and Senate (particularly in the midterm elections.) This arbitration becomes a matter which the elements of the elitist faction decide among themselves.  In effect, this formally curtails government of, by and for the people.  It makes way for the de-fact re-imposition of government by the elitist few (the estate that, in the past,  was called “the nobles” or “the Lords”.)

America’s founders would surely have fathomed the meaning of current events in just these terms.  It’s one of the reasons they provided for frequent periodic elections, and gave the power of impeachment/removal to the legislative body subject to them.  Their understanding of the timeless and recurrent nature of threat of elitist despotism contributed greatly to the prudent foresight that most distinguishes them from the so-called “political leaders” of our day, even the well-intentioned conservatives.  Though these latter have not simply embraced the elitist faction agenda (thereby becoming what I call “quislings”, collaborating in the restoration of rule by the elitist few) they still seem unable consistently to grasp and articulate the full logic of transpiring events. When they occasionally to do so, their timid and inadequate exposition of what is at stake does little to rouse the just passions of the people,. It does little to attach them to the reasonable convictions that impel free people to stand with courage in defense of their decent liberty, even in the face of threatening losses, wounds and death. [More on this in my next posting.]

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