Tolerating Obama’s lawlessness invites a destructive new era of dictatorial presidency.
In writing Faithless Execution: Building the Political Case for Obama’s Impeachment, I had a purpose: Explain that the capacity of Congress to oust a lawless president is central to the Framers’ design of our governing system. Because executive power is awesome, and intended to be that way, certain abuses of it can be discouraged only by the credible threat that Congress will remove the president from power — or, if discouragement fails, can be remediated only by the president’s actual removal. That is why Madison believed that the inclusion of impeachment in Congress’s arsenal was “indispensible” to preserving the Constitution’s framework of liberty vouchsafed by divided power.
Abuse of the executive’s power over immigration enforcement now belongs in this category of maladministration that impeachment alone can counter. One must use the qualifier “now” because this was not always the case. Immigration enforcement was originally a state responsibility. Washington has supplanted the states since the early 20th century, an erosion of federalism largely responsible for our current immigration crisis. That, however, is a subject for another day. Like it or not (I don’t), the federal courts’ ill-conceived application of preemption principles has left the states and the American people vulnerable to a lawless president who refuses to protect them from illegal immigration while preventing them from protecting themselves. (Obama’s theory that disarming the state somehow promotes security works about as well in Arizona as it does in Ukraine.)
I drew on Faithless Execution in last weekend’s column and in a follow-up Corner post, positing that, short of credibly threatening impeachment, Congress and the courts can neither compel a president to enforce the laws nor stop him from using his plenary pardon authority to grant a sweeping amnesty. That gets Obama two-thirds of the prize he is pursuing — namely, several million aliens whose illegal status has been purged, put on the path to inevitable voting rights that will give Democrats an invincible electoral majority.
As for the remaining third, Congress could, in theory, block the president from granting illegal immigrants legal status and other positive benefits (such as work permits) without impeaching him. To do this in reality, though, Congress would have to use its power of the purse. Translation: It would take the credible threat of a government shutdown to check the president’s lawless conferral of benefits.
Alas, that constitutional parry has already been disavowed by GOP congressional leadership. If they persevere in this disavowal, it will be in defiance of their base (and against the sound tactical advice of Mark Krikorian). Yet such a signature display of preemptive surrender would come as no surprise given that, as previously argued here, their opposition to Obama’s imperious method of achieving his goal seems, shall we say, less than genuine. Moreover, the judiciary that Mr. Obama is stacking with Lawyer Left activists like himself can be relied on to twist the Constitution into mandating any benefits the president does not succeed in awarding.
Against this backdrop, I am gratified that Fox News’s Megyn Kelly and Charles Krauthammer have just given the topic of impeachment in the immigration context more of the serious consideration it deserves. Appearing on The Kelly File Thursday, Dr. Krauthammer asserted that the president’s anticipated amnesty decree for millions of illegal aliens “is an impeachable offense.”
He is plainly correct. As Faithless Execution elaborates, “high crimes and misdemeanors,” the Constitution’s trigger for impeachment, is a term of art for abuses of power that violate the president’s fiduciary obligations to the American people he serves, the constitutional system he takes an oath to preserve, and the laws whose faithful execution is his core duty. High crimes and misdemeanors are not — or at least, not necessarily — the same as “crimes” and “misdemeanors” prosecutable in the courts. Impeachment is a political remedy (i.e., the removal of political authority), not a legal one (i.e., the removal of liberty after criminal indictment and conviction). That is why Hamilton, in Federalist 65, described impeachable offenses as “political” in nature — as “proceed[ing] from the misconduct of public men, or in other words from the abuse or violation of some public trust.”
A sweeping amnesty for millions of unrepentant lawbreakers that punishes American workers, imposes crushing burdens on the states, and betrays law-abiding aliens who comply with our immigration rules is not an indictable offense. Yet it is obviously an impeachable one. So is the failure to enforce the immigration laws. And the effort to award by executive decree benefits that only Congress has the power to grant is patently lawless and thus just as clearly impeachable.
Dr. K made a couple of other observations worth noting. He aptly asserted that the distortion of the doctrine of prosecutorial discretion — the ploy by which Obama camouflages his usurpation of congressional lawmaking power — is a “travesty.” I respectfully suggest, however, that Krauthammer conflated two distinct executive powers. He said prosecutorial discretion is properly invoked to refrain from enforcing a law in the rare situations where that law’s strict application would cause an unjust result. Actually, that is what the pardon power is for. Prosecutorial discretion (see here) is, instead, a routine resource-allocation principle. It calls for certain laws (e.g., marijuana possession) to go unenforced not out of clemency but because investigative resources are finite and weightier offenses must be prioritized. Nevertheless, Dr. K’s overarching point was sound: Obama is abusing prosecutorial discretion to undermine our governing framework.
There was irony for me in Krauthammer’s suggestion that impeachment seems less politically viable at this point because (1) Republicans have mounted no opposition to his years of serial lawlessness, most prominently including over 30 executive alterations of Obamacare, and (2) we are late in Obama’s presidency. Faithless Execution attempts to illustrate how Republicans could build political support for Obama’s impeachment by marshaling his years of unilateral and systematic “waivers,” amendments, distortions, and defiance of federal law. But when I made that argument, critics (including some on the right) claimed that I was trying to criminalize policy disputes, that impeachment was overkill.
First published on National Review online and reposted with author’s permission.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.