A constitutional crisis for fun and profit

  • By Rich Lowry
  • Sunday, August 3, 2014 7:27pm
  • News

Republicans and Democrats are consumed in a vicious debate over which party wants to talk about impeachment more.

Democrats say it is lunatic Republicans who are scheming, as we speak, to impeach the president. Republicans say it is manipulative Democrats who are eager to play up the nonexistent chance of impeachment to motivate their voters in the midterm elections.

It is certainly true that conservatives have talked about and advocated impeachment, most recently Sarah Palin in a call to arms. My colleague Andrew McCarthy wrote a serious book-length consideration of the topic, “Faithless Execution: Building the Political Case for Obama’s Impeachment.”

But the Republican political leadership — and for that matter, almost all Republicans in Congress — has shown zero interest. In fact, it has long demonstrated a positive allergy to the topic, believing that it will be a politically damaging nonstarter.

Nothing about this changed during the past few weeks, yet all of a sudden Democrats are acting as if it is February 1868 or December 1998 all over again, and the president is on the verge of losing an impeachment vote in the House.

This manufactured panic can get Democrats only so far. The reality is that House Speaker John Boehner’s lawsuit, which they say is part of the nefarious impeachment plot, will, even if successful, have little practical effect beyond establishing the precedent of Congress suing the president.

But Democrats hold the trump card in the tussle over impeachment. All reports are that President Barack Obama is considering a sweeping action on immigration so clearly unlawful that it will, at the very least, pressure Republicans to consider impeachment more seriously. Just imagine the Democratic fundraising emails then!

Obama aide Dan Pfeiffer’s puppy-dog enthusiasm for invoking impeachment when discussing the president’s immigration plans suggest the White House is counting on a furious Republican reaction to its move. If this is truly the gambit, it is dime-store political nihilism.

First and foremost, there will be the violence done to our system of government. A big unilateral amnesty that affects millions of people won’t be an exercise in so-called prosecutorial discretion. It isn’t declining to enforce the law in a specific instance because of limited funds and personnel. It is expending resources to implement an entirely new dispensation.

There is some leeway for executive discretion, or deferred action, in immigration law, but everyone has always understood that it’s very limited. Not too long ago, President Obama eloquently explained why.

“I just have to continue to say this notion that somehow I can just change the laws unilaterally is just not true,” he told Latino journalists in response to a question about acting alone on the DREAM Act in 2011. “The fact of the matter is there are laws on the books that I have to enforce.”

He went on to say, “We live in a democracy. You have to pass bills through the legislature, and then I can sign it.”

Even President Obama got, or so it seemed, that he isn’t the legislator-in-chief, empowered to write and rewrite laws on his whim. Oh, for those halcyon days. Not too long after, he went ahead and did the unilateral enactment of a version of the DREAM Act immigration activists wanted. Now, he is reportedly on the cusp of doing something much bigger.

The White House must know that the politics of his unilateral amnesty, especially if it prompts a push for impeachment, will be highly divisive. But the tea leaves say that the White House will welcome the division.

It may well believe that its contemplated extralegal act is a win-win, delivering what it wants substantively (amnesty for millions) and politically (a debate on impeachment it assumes will be a loser for Republicans).

In other words, the president will be stoking a constitutional crisis because it suits his purposes. If callow cynicism were a high crime, his impeachment and removal would be a foregone conclusion.

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