Josh Marshall has a post entitled “Just Crazy”. As usual I agree with some of what Marshall writes. In this case, I think the post is just crazy. In it he quotes “TPM reader AN” with approval who wrote (among other things)
…is there significant and recent precedent of an Administration refusing to enforce a duly enacted law passed by Congress and signed by a President?
I could be wrong but I cannot recall a recent example. I would not be surprised if the last time this happened (if ever) was pre-Civil War Lincoln presidency;…
How soon we forget. Why it would be as if George W Bush refused to enforce The Patriot Act which he had signed into law. You know the law which relaxed FISA but still required warrents for wiretaps.
Let me refresh the memories of Marshall and TPM reader AN
(Bush ignored the Patriot Act on the grounds that it was unconstitutional. His legal advisor Yoo had argued that the Patriot Act is constitutional).
There are too many references to Bush refusing to enforce laws which he didn’t like and called unconstitutional for me to include links to one in a thousand of them. But somehow AN has forgotten all of them.
I agree with Marshall that “Chief Justice Roberts’ suggestion that President Obama should have stopped enforcing DOMA really was preposterous.” Indeed, if the President feels free to ignore laws (and in this case disburse funds from the Treasury) because he says that Congress exceeding its authority, we wouldn’t have a new approach to Constitutional government we would have an absolute monarchy. I mean if the President can place his judgement of what is constitutional above Congress’s why not also declare Supreme Court opinions unconstitutional.
The fact that our Constitutional order was suspended for 8 years (by the person who appointed Roberts) doesn’t mean that the correct approach to Constituional checks and balances is to condemn them.
The idea that the President should just disobey laws (in this case concerning taxing as per the plaintiff’s complaint) because he is willing to argue that they are unconstitutional is a direct assault not only on the US constitition but also on the very idea of a constitution. I think Roberts should be impeached for misconduct (note judges and only judges can be impeached for acts which are not forbidden by the criminal code).
But the idea that utter contempt for the Constitution (which recall is not a suicide pact) is unprecedented is a Marshall howler which is itseelf unprecedented.
Marshall covered the story. Indeed he covered it spectacularly. How can he have forgotten so quickly ?
Update: Just to clarify. I admire Josh Marshall very very much. My faith in him is not at all shaken by my disagrement with the “just crazy” post.
Update II: This is rich. It turns out that the Obama justice department isn’t the first to tell the Supreme Court that a law is unconstitutional. Ian Millhiser at think progress notes that then acting Solicitor General John Roberts signed such an argument in 1990. There is no evidence that Roberts denounced President George H.W. Bush for applying the law.