Let Us Tell You What We’re Not Going to Do About Presidential Lawlessness

Why is he always telling them what he’s not going to do?

This has become a constant refrain among President Obama’s Republican and conservative critics. And it is an excellent question. Why does the president tell jihadists from the Islamic State and al-Qaeda that the American campaign against them will be strictly limited to aerial bombing (sporadic, at that) and absolutely, positively will not involve the introduction of U.S. ground forces?

The theory behind the question is bulletproof: the only way you can hope to keep bad actors in check, to discourage them from acting roguishly in pursuit of their ambitions, is to indicate that you might respond with your superior powers. Even if you are reluctant to unleash those powers, the seed of doubt planted by signaling the possibility of decisive counteraction forces rogues to tread lightly. On the other hand, take your decisive weapons off the table and you’re sure to find ISIS mocking your impotence, sacking city after city, and poised to take Baghdad.

My question for my colleagues: why don’t we practice what we preach?

Back in June, my book Faithless Execution was published. Contrary to some of the commentary it provoked, I did not call for President Obama’s immediate impeachment. Indeed, I argued that the lesson of the Clinton impeachment episode was that it is a mistake to commence impeachment proceedings in the absence of strong public support for the president’s removal.

The point of the book was to address how presidential lawlessness — a threat to our governing structure over which the Framers agonized — is dealt with in the American constitutional system. Other than the ballot box, the Constitution provides only two ways for Congress to rein in presidential maladministration: the power of the purse and impeachment. That is, Congress can starve the administration of the funds needed to carry out its rogue practices, or it can remove from power executive officials — up to and including the president — who are lawless, derelict, profoundly dishonest, or incompetent in the carrying out their duties.

Like committing military “boots on the ground” in the Middle East, the use of these powers could be dispositive. Moreover, if Republicans signaled that reluctant resort to these powers was a distinct possibility — a signal that would rivet public attention to presidential lawlessness, and could thus alter the political climate — President Obama would be forced to factor that into his calculations.

Yet — adopting the president’s self-defeating strategy for conducting war — congressional Republicans cannot quickly enough or often enough tell the world what they are not going to do about Obama’s lawlessness.

Cross our hearts, they proclaim, they will take no action that could cause a government shutdown. (Translation: the power-of-the-purse is off the table, since — lacking a veto-proof majority — Republicans would need to force a budget showdown in order to deprive Obama of the funds that underwrite his lawlessness.) And under no circumstances — no matter how shocking the lawlessness, no matter how derelict or incompetent the performance, no matter what lies are told to the country, no matter how determinedly the administration obstructs investigations of its misconduct — will Congress even consider an impeachment investigation, much less the filing of impeachment articles.

So Republicans keep telling the president what they are not going to do.

And the president? To take just a few of the most recent notorious items, he is now poised to:

• Close Guantanamo Bay and unlawfully transfer the remaining 149 jihadists detained there into the United States — into the indisputable jurisdiction of federal judges (hundreds of whom Obama has appointed) who could order their release from custody.
• Continue replenishing the enemy, even as the terrorist threat against the U.S. intensifies, by extraditing any Gitmo detainees not transferred to the U.S. to countries that will allow them to rejoin the jihad — just as he allowed five Taliban commanders to leave Gitmo a few months ago.
• Abandon today’s half-hearted operations against ISIS and al-Qaeda once the midterm elections are over.
• Unilaterally and lawlessly decree an amnesty for millions of illegal aliens.
• Continue covertly transferring illegal aliens to cities and towns across the country, without notice to state officials, leaving local communities to deal with their housing, education, and healthcare, including any deadly infectious diseases they may spread.
• Continue admitting hundreds of aliens every week from West African nations plagued with epidemics of Ebola and other potentially deadly infectious diseases — peddling the self-evidently absurd rationale that disease cannot be addressed at its source without exposing Americans to it here.
• Continue the march toward a deal that enables Iran’s nuclear weapons ambitions.
• Continue failing to secure the border and to enforce immigration laws despite the heightened terrorist threat.
• Continue to enforce civil rights law in a racially discriminatory manner in violation of the Constitution.
• Continue to impose combat rules of engagement that endanger our troops in harm’s way.
• Continue unilaterally and unlawfully rewriting the Obamacare statute, the federal drug laws, the federal immigration laws, and other congressional enactments that impede Obama’s statist policy preferences.
• Continue stonewalling the public and Congress regarding the Benghazi Massacre, the IRS targeting of conservative groups, the Fast & Furious debacle, and other administration scandals.

And so on. The Obama presidency has become a study in the raw power of the presidency in the hands of a willful ideologue checked only by his calculations about damage to his political standing — under circumstances where, with no more elections to worry about, Obama is increasingly less concerned about the unpopularity of his policies. Obama’s opponents have made clear that while they will complain about his maladministration, they will take no meaningful steps to stop it.

As I argue in Faithless Execution, Obama’s opposition can certainly disavow the powers the Framers provided to preserve a nation of laws by combating presidential lawlessness. That is a rational political choice if one is convinced that the public would revolt against either: (a) a government shutdown, however limited, and however well-framed as a necessary effort to halt Obama’s unpopular lawlessness; or (b) the start of an inquiry — not the filing of impeachment articles, but the mere commencement of hearings — into whether executive officials who carry out Obama’s lawless or derelict policies, including the president himself, should be removed from power.

But if you tell a rogue actor that you are not going to use the only powers available to you to stop him, you cannot be surprised when his behavior becomes ever more outrageous.