Obama may not be as wrong as you think

By Dan Popp

Blind squirrels and stopped clocks mean that occasionally even a refugee from reality like President Obama may be closer to the truth than his conservative critics. Or it could be a sign of the apocalypse. You decide.

Back during the run-up to the cram-down called "Obamacare," conservative pundits were howling that the Congress was "legislating against the will of the people," as if that were a bad thing in and of itself. It isn't. The philosophical reason we have a representative republic, rather than a direct democracy, is that the elected legislators can act as a buffer against the will of the people. Now in that case it was the people who were sane (or 70% sane) and their representatives who were crazy, but that doesn't affect my point. Congress certainly may legislate, or refuse to legislate, "against the will of the people." That's why they're there.

Of course, conservatives were right to say that the "Affordable Care Act" is unconstitutional, a power grab, destructive to actual care and affordability, etc. And I think that's the more important question. But the "process" question is important, too, and for the sake of educating future citizens if nothing else, we need to say that the Congress is not necessarily wrong to legislate against the will of the people. This is not, thank God, a government of opinion polls.

Conservatives, it seems to me, are making the same mistake with President Obama's announcement that he will only enforce certain parts of our immigration laws. Yes, shocking, isn't it? The President (not the Attorney General, by the way) is the chief law enforcement officer in the land. His job is to put into effect the laws that Congress makes.

But, just as Congress exists to form a gooey interface between popular sentiment and legal pronouncement, the POTUS may be seen as another clutch in the national transmission. Again, if this were not true, there would be no need for a separate Executive Branch — Congress could perform both functions. The clichéd "checks and balances" of the general government mean that each branch was intended to challenge the others from time to time.

As President Andrew Jackson said of a particular Supreme Court ruling, "John Marshall has made his decision: now let him enforce it!"

But that's not the end of the story — Congress may challenge the President as well. They may haul him in for censure or begin impeachment proceedings if they so desire. State governments — the sometimes forgotten layer of constitutional checks — may sue the administration. This is all, for better and worse, part of our process.

"Let me be clear." Mr. Obama's haughty announcement that he will not deport some illegal aliens is a totally transparent attempt to buy votes at the expense of the rule of law. He should be condemned for it, and history will condemn him for it. And going beyond refusing to apply a law, to providing illegals with the means to break more laws, is unconscionable. But the authority behind selective enforcement of laws is probably what the Founders envisioned when they separated government powers.

Let's put the shoe on the other political foot. If the Supreme Court lets Obamacare stand, and if there is a President Romney come January, it will be perfectly legitimate for him to say, "John Roberts has made his decision: now let him enforce it." And he can say, "One of the many failed policies of the recent past was to encourage lawbreaking. I am announcing today renewed efforts to enforce all of our constitutional attempts to secure the nation's borders. We hope you've enjoyed your stay in our country. Come back through the front door or not at all. Adios."

© Dan Popp