Remedies to Obama’s Executive Action
What can be done?
Our Founders established three primary mechanisms to control an unconstitutional government. The first is the power of impeachment which we wrote about earlier. John Yoo and Robert De La Hunty at National Review see the politics the way I do:
“The problem with impeachment is not its constitutional availability, but its political viability. As the Clinton affair teaches, Congress should not embark on impeachment unless it has the votes to convict. The House may vote to impeach — essentially a decision to prosecute — but the Senate must agree by a two-thirds vote to remove the president. Even with their stunning victories in this month’s midterm elections, Republicans have nothing approaching 67 votes in the Senate. Not only will impeachment fail, but as with Clinton, it will likely redound to Obama’s political benefit.”
The second route is the power of the purse. Yoo and De La Hunty have some intriguingly delicious ideas:
“Opponents in Congress should immediately turn to the funding power. They need not aim for a complete government shutdown, which proved disastrous for the Republican party last year. They should use funds as a scalpel, not a sledgehammer. Congress could increase funds for border and immigration-control officers and cut them for higher management and legal advisers in the Department of Homeland Security and the Justice Department. It could separate the DHS appropriation from the overall federal budget and take a stronger hand in reorganizing and downsizing the department. It could refuse to cooperate with the Obama administration on any new funding proposals in other areas unrelated to immigration, and it could ignore the administration and spend more funds on national security.”
The third route is a lawsuit which we also wrote about earlier. Yoo and De La Hunty seem to arrive at the same conclusion I did:
“The problem is that of standing, which requires that a plaintiff have suffered an “injury in fact” that is traceable to the government’s action and for which the court can order a remedy. Conservatives such as Justice Antonin Scalia favor standing because it makes sure that federal judges are deciding real cases and controversies, as required by the Constitution, and not using lawsuits as an excuse to make social policy. When the president refuses to enforce the law, plaintiffs will have difficulty hurdling the standing bar, because all citizens may be harmed, but no individual American is uniquely harmed enough to bring suit.”
The remedies for action deemed to be unconstitutional by the executive are as plain as day. Unfortunately, none are politically palatable, at least for the GOP at the moment.
