Newt Gingrich got people worked up into a lather when he appeared to suggest that Barack Obama should be impeached for his reversal on the Defense of Marriage Act. (Gingrich subsequently walked the comment back a bit.) It reminded me of when Pat Buchanan published a column floating a bill of impeachment against George W. Bush for failing to enforce immigration laws — and then promptly went to the beach for vacation while the phone lines at the American Conservative burned up.
Presidents don’t get to pick and choose which duly enacted laws they will enforce. They do, in my view, have leeway over enforcement priorities and which laws they will instruct their Department of Justice to defend in court, though neither should be taken lightly. But some conservatives have gone beyond these arguments to questioning a president’s right to make independent judgements about the constitutonality of legislation. That job, they say, belongs to the Supreme Court.
Hogwash. Presidents and members of Congress take an oath to obey and defend the Constitution. That oath obligates them to make their own judgements about the constitutionality of federal actions. To argue that the Constitution has no meaning independent of what judges say is to argue not for constitutionalism but judicial tyranny. This is a mistaken view of the Constitution that completely undercuts the constitutional challenges to Obamacare while implying Roe v. Wade is totally legitimate. Therefore it is a view conservatives would be wise to reject.
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