Why might an executive officer not enforce a law?
1) They lack the resources or capabilities to do so.
2) They are exercising a type of “non-judicial constitutional interpretation,” that our system allows for. Sworn to uphold the Constitution, they do not have to wait to hear what the highest court says about a law. This especially applies to elected executives.
There are legitimate debates about how and when 1) and 2) may be applied. But recent news shows us two clear examples of abuse.
Our president has said he won’t enforce aspects of current immigration law, which amounts to a de facto alteration of it. As the Claremont Institute brief I link to below explains, our president won’t permit his Justice Department to defend DOMA when it is challenged in court, and while it is not exactly occurring with DOMA (see the brief for the complexities here), the basic precedent set could establish a new way for a President to elude the “Take Care” clause, and thus arm presidents with a de facto super-veto.
There are complexities in both cases, and I invite others to weigh in on my basic judgment of them here, but I say BOTH executives are being very irresponsible. I say that all Forthright Supporters of our constitutional order, whether Republican or Democrat, should condemn both men.
I saw this via Gateway Pundit, and and here’s the rationale of a commenter there backing Cooke’s action:
And why not? The federal government is leading the way by refusing to enforce our immigration and border control laws, and has actively engaged in gun trafficking across our national border. Our president has refused to submit a legally required budget four years in a row. Our Attorney General has apparently committed perjury under oath during Congressional testimony.
See the pattern?
Even if you think the Gateway Pundit commenter’s account of Obama is largely wrong, you cannot deny the reality of how Obama’s pushing the constitutional envelope is perceived, nor the response his insouciance about that perception invites.
I’m not that worried about a spread of Executive Non-enforcement as a short-term, next few years, trend. But give us another ten to twenty years of Democratic governance in the Federal Executive that follows the precedents set by Obama, and this Cooke incident provides you with a glimpse of the civil dissolution that will occur on a very wide basis. The elected officials of Red States and localities will increasingly “go Cooke.” Basic lines of authority and the status of the law itself will become unclear. Add to that a Supreme Court decisively dominated by living constitutionalists, and the stage will be set for breakdown.
Truly moderate Democrats, hear me!
The likes of me and other rule-of-law conservatives will not be able to win many arguments with the likes of Cooke if you continue to elect and not denounce Democrat Leaders who are only So-to-Speak-Supporters of the Constitution. For a host of reasons, many of them connected to the MSM and universities refusing to reform themselves when confronted over the past two decades with undeniable evidence of bias, Red State America now distrusts the Democrats nearly completely. And to the extent that distrust extends even to basic Democratic adherence to the Constitution, it will unravel the very fabric of our nation. Yes, perhaps for a long time, various Cookes and “kooks” can be squelched and defeated by a more vigorous assertion of federal power.
But Democrats, is that the sort of nation you want? Will that really be “Winning?” Sheriff Cooke and his supporters may be, in your honest judgment, wrong on gun issues and even a bit nutty and hateful about them. But they are your brothers and sisters!!! And I am asking you to meet them at least on the ground of the Constitution, and to DEMAND that your leaders regularly demonstrate their Forthright Support of it. Democrat politicians like Obama there will always be, I understand that, but if the pattern of his behavior becomes the standard template, then only the decisive defeat of the Democrats over several elections can save our nation.
I no longer assume that will happen. I am therefore increasingly led to the conclusion that unless new (and in many ways old) patterns of Democrat Leadership rise to compete with the one being set by Obama, the dissolution is coming. Obama v. Cooke is our future.
So moderates, perhaps it’s up to you.