Invariably it happens: someone will reach into his breast pocket and pull out his “pocket Constitution” and deem himself expert enough to argue constitutional law from the “black letter law” of his pocket Constitution.
Of course, this is complete nonsense.
There are libraries full of statutes enacted by Congress and the congressional record of their debates regarding the meaning and purpose and constitutionality of such laws. There are libraries full of administrative rules and regulations enacted by executive department agencies to implement such laws, as well as administrative law judge opinions and executive orders. And there are libraries full of court opinions interpreting all of this and deciding whether it is constitutional.
So when someone whips out their pocket Constitution, they should imagine that the Library of Congress and all of its contents are attached to it as an appendix to explain and interpret the Constitution. Their “School House Rock” knowledge of the Constitution is a deeply uninformed opinion.
Which makes what happened this past Wednesday at a committee hearing all the more entertaining. The Washington Post’s Dana Milbank explains, A lawsuit with little merit:
Rep. Pete Sessions, the House Rules Committee chairman who led Wednesday’s hearing on Republicans’ plans to sue President Obama, presented the legal credentials that have put him in this position of responsibility.
“I’m an Eagle Scout,” the Texas Republican told his colleagues. “I studied the merit badges that we took about governance, about cities, states, the national government.”
Merit badges! Not even the politician’s parlour game of whipping out his pocket Constitution. This is ROFL hilarious! Milbank continues:
See? The GOP lawsuit isn’t just a stunt to appease conservatives who would rather impeach Obama. It’s a serious legal case — Scout’s honor!
The chairman’s recitation of his constitutional credentials was just one of the things that turned Wednesday’s hearing into an amateur hour — or an amateur five hours.
There was also the testimony of Elizabeth Price Foley, a law professor from Florida International University who testified with conviction that “the House would have an excellent chance of winning” its lawsuit against Obama for delaying parts of Obamacare. Her confidence, however, was undermined by an article she wrote five months ago, arguing flatly that delays “cannot be challenged in court.”
It is a legal concept known as “benevolent suspensions,” something you did not learn from watching “School House Rock” or that you will ever find in the “black letter law” of your pocket Constitution. As Foley wrote for The Daily Caller back in February:
First, courts have limited ability to check a president’s failure to execute. The primary obstacle is “standing,” a doctrine that requires a plaintiff to have a concrete, personal injury in order to sue. Citizens can’t file generic lawsuits to enforce the Constitution; they must prove that the government has harmed them in a personal, palpable way.
When a president delays or exempts people from a law — so-called benevolent suspensions — who has standing to sue him? Generally, no one. Benevolent suspensions of law don’t, by definition, create a sufficiently concrete injury for standing. That’s why, when President Obama delayed various provisions of Obamacare — the employer mandate, the annual out-of-pocket caps, the prohibition on the sale of “substandard” policies — his actions cannot be challenged in court.
* * *
[T]he Supreme Court has made clear such generalized societal harms won’t suffice.
Congress probably can’t sue the president, either. The Supreme Court has severely restricted so-called “congressional standing,” creating a presumption against allowing members of Congress to sue the president merely because he fails to faithfully execute its laws.
Remember, this is one of the lawyers the TanMan has hired to use “creative lawyering” to get his ill-considered lawsuit into court, and even she is conceding that she is full-o’-crap. The Bush-Cheney administration relied upon “benevolent suspension” of the deadlines in its Medicare Part D prescription drug benefit program, and Republicans at the time never raised an objection, demonstrating their complete lack of consistency. IOKIYAR.
The other Republican witness, George Washington University law professor Jonathan Turley, was more consistent: He has bemoaned executive authority since he testified in support of Bill Clinton’s impeachment, and he had an arsenal of urgent terms (Crisis! Uber-presidency! Tipping point!). But Turley lacked confidence in the outcome. He acknowledged that the Republican litigants are “going to have a hard time” in district court, that “many judges are hostile” to giving Congress the legal standing to sue and that “the president has the advantage on standing.” He counseled Republicans not to worry about the steep odds, saying, “I don’t believe that the challenges in front of this lawsuit is an excuse to do nothing.”
Turley has a history of taking controversial positions. He likes to play a lawyer on TV and troll the cable networks for face-time. “Turley wandered expansively, making reference to King James, quoting from the movie “Jerry Maguire” and Shakespeare’s “Richard III,” noting his status as “a Madisonian scholar” and mentioning that he had a speech to give later in the day.” Color me not impressed.
Then there was the problem of consistency. To justify a lawsuit, Republicans had to overcome their allergy to judicial activism — to force Obama to implement more quickly a law they have fought repeatedly to repeal. Walter Dellinger, a frequent Supreme Court litigator who served as a Democratic witness, quoted from the writings of several conservative scholars — John Roberts, Antonin Scalia, William Rehnquist, Jack Goldsmith — expressing skepticism about congressional standing.
Rep. Louise Slaughter (N.Y.), the ranking Democrat on the Rules Committee, mocked the Republicans’ ideological contortions by reading a passage from “Alice in Wonderland”: “Sometimes I believe in as many as six impossible things before breakfast.”
Milbank doesn’t get to this important point in his opinion: “Democratic witnesses warned that the proposed litigation would give too much power to the courts and open the door to almost limitless possibilities for different bodies of the government to sue each other.” Lawyers Debate Merits of Boehner Lawsuit.
“’It would create a mess on a scale that is hard for any of us to even think about,’ said Simon Lazarus, an attorney of the Constitutional Accountability Center.”
Such a lawsuit would shift the balance of power under the separation of powers of the Constitution from an elected president and Congress answerable to the people, to a powerful unelected Star Chamber Court who serve lifetime appointments and are answerable to no one unless impeached by the Congress — something which has happened only once in our history, Associate Justice Samuel Chase — and he was acquitted by the Senate in 1805.
What this lawsuit is really all about is that House Tea-Publicans cannot unilaterally impose their will. They are frustrated that they do not possess absolute power over the Senate, the president, and even the courts, as Boehner’s lawyer Foley unintentionally revealed in her piece for The Daily Caller:
[C]ouldn’t Congress just enact another law reversing him, or even impeach him? In today’s hyper-partisan climate, the answer appears to be no.
Even if the House passed a bill undoing presidential action — for example, a bill that declared, “We don’t want individuals brought into this country illegally to be exempt from deportation, and we really, really mean it this time” — the Democrat-controlled Senate wouldn’t likely allow a vote on the measure.
* * *
Indeed, why should Congress even bother to legislate in the current environment? If it somehow miraculously passed something the president opposed, it would be promptly vetoed, and getting two-thirds of both Houses of Congress to overrule his veto — particularly in the Senate — is as likely as a snowstorm in Miami.
Even when a congressional majority agrees with the president and passes a law the president signs, there’s little confidence he will faithfully execute the law as written. [This is a perverse rationale for why this less-than-less-than-do-nothing Congress should do nothing and pass no laws, abdicating its constitutional responsibilities, unless it is given absolute power to impose its will on the other branches of government.]
In short, this is an anti-democratic insurrectionist Tea-Publican Party that wants to impose its minority will on the majority of Americans who disagree with their extremist and radical agenda, and they are willing to pursue any extra-constitutional means necessary to seize power and to impose their will on their fellow American citizens.
If you care about preserving democracy and the rule of law, you will vote to throw these radical Tea-Publican insurrectionists out of office in November.