House Speaker John Boehner’s proposed lawsuit against Barack Obama is causing a great deal of chatter in Washington. Political stunt, as Obama has called it? Or, maybe, checkmate, Obama?
There is a quiet gap in the U.S. Constitution. There is no explicit mechanism to discipline a president who fails to carry out his Constitutional duties. This gap sat there, barely noticed, for centuries. Barack Obama, apparently, noticed it. He is exploiting it. That exploitation is a serious departure from Constitutional principle … whether or not one supports his policies, whether one is a progressive or conservative.
John Boehner now is mobilizing a Congressional lawsuit to put a stop to it. This is not about Obama “doing his job.” This is about Obama not doing his job and, indeed, deviating, flagrantly, from an explicit Constitutional duty.
Although the Supreme Court is loathe to arbitrate between the political branches, this is not that. This is about the president adhering to the Constitution. There are reasons to believe that the Supreme Court may see this president as in flagrant Constitutional dereliction.
The Constitution requires the president to take a solemn oath to preserve, protect, and defend the Constitution, before taking office:
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
The Constitution sets forth, at Article One, section 3, a presidential obligation to “take care that the laws be faithfully executed.”
There is no explicit mechanism to sanction a president for failure to preserve the Constitution or faithfully execute the laws. The Constitution provides only for the impeachment and removal of a president from office and then only for “treason, bribery, or other high crimes and misdemeanors.” Obama, manifestly, has not committed an impeachable offense. Violating one’s oath of office is not even a misdemeanor.
Call it “the case of the faithless president.” It is not, at base, a skirmish between Congressional and executive power. It is much more serious than that. It is about fidelity to the Constitution.