To Govern Is to Defend the Constitution

Rule of Law by from The Weekly Standard, November 19, 2014

Congressional Republicans’ internal debate over how to respond to President Obama’s impending lawless executive amnesty is being characterized as a battle between “immigration hawks” and those who want “to show Republicans can govern.”  But that description is inapt, and it does a disservice to the magnitude of the stakes.  While the policy dispute is over immigration, this isn’t about policy.  It should make little difference to congressional Republicans whether Obama were to use extralegal authority to grant amnesty to illegal immigrants, on the one hand, or to unilaterally repeal Obamacare on the other.  Either way, he would be tearing our constitutional fabric — and no policy is important enough to justify violating our constitutional forms to achieve it.

In the debate over slavery — a policy whose importance would be hard to surpass — the first Republican president, Abraham Lincoln, and Supreme Court Justice Benjamin Curtis, in his wonderful Dred Scott v. Sandford dissent, refused to succumb to the temptation of prioritizing policy desires over our constitutional text and structure.  As with the abortion debate in our own day, the Constitution didn’t decide the slavery question, and both men knew it.  So while the Taney Court pretended that the Constitution decided that issue in favor of slavery, and while many abolitionists pretended that the Constitution decided the issue in opposition to slavery, both Lincoln and Curtis steadfastly insisted that both sides were in error:  Both sides were prioritizing their own policy goals over what Lincoln called “the political religion of the nation.”

Lincoln and Curtis stood with the Constitution.  Obama will not.  The question is whether congressional Republicans will follow the example of the former or will become complicit in the actions of the latter.  Will they courageously stand up to Obama, or will they decide that their own immediate political calculations are more important than defending the very document that gives them power?

Moreover, if Republicans want to show that they can govern, there is no more important element of governing than defending our governing charter.  Our constitutional forms are not merely the means to an end; they are, to a large degree, the cause to which we owe our devotion.  A party that will not defend the Constitution demonstrates in that refusal that it will not, or cannot, govern.  Thankfully, enough congressional Republicans share a strong commitment to defending that document that they will likely pull the rest along.

And thankfully, there is a strategic course that they can follow, one outlined by Ramesh Ponnuru two days ago.  The smart play for Republicans is to pass a short-term continuing resolution during this lame-duck session that funds the government into January and then, in January, pass two bills:  The first would fund everything but the United States Citizenship and Immigration Services.  The second would fund that agency while denying funding for Obama’s lawless actions.

If Obama refuses to sign the first January bill, which would fund the rest of the government, it will be clear who has caused the government to shut down:  an arrogant president, acting lawlessly, usurping Congress’s authority, defiantly ignoring not only the separation of powers but also the will of the voters, and attempting to substitute the arbitrary rule of man for the fixed rule of law.

Jeffrey H. Anderson is executive director of the 2017 Project, which is working to advance a conservative reform agenda.

© 2014 Weekly Standard LLC. Reprinted with permission.