by Mitch Kokai
Senior Political Analyst, John Locke Foundation
If you read an entry in this forum earlier in the week about U.S. Sen. Ron Johnson, R-Wisc., and his plan to file suit over Obamacare exemptions, you might be interested in an alternative view from National Review Institute senior fellow Andrew McCarthy.
Johnson says he will file a complaint in Wisconsin federal court. The point, apparently, is to try to have a judge affirm that it is illegal for President Obama to exempt members of Congress and their staffs from the full financial burden of purchasing insurance through an Obamacare “exchange.”
The senator is right when he says the risibly entitled Patient Protection and Affordable Care Act (PPACA) does not permit this — just as it does not permit various other exemptions, waivers, and actions our would-be emperor-in-chief deems himself empowered to order. …
… All that said, however, it is no more constitutionally proper or practical for a legislator to sue the president over a public-policy dispute than for the president to violate valid laws. As I’ve observed before (most recently, here), the Framers gave Congress two tools to rein in a lawless chief executive: the power to cut off funding and the impeachment power. These tools are powerful, but they have serious political ramifications, and thus elected officials shy away from using them. But they are the only tools available, and politicians cannot forever evade accountability. After all, not using these powers has ramifications too, such as encouraging rampant presidential lawlessness.
That puts Beltway pols in a bind: They cannot afford to be seen as doing nothing about Washington self-dealing, but they lack the fortitude to take serious constitutional action. So they get creative when it comes to otiose stunts that give the illusion of action: e.g., parliamentary gimmicks that allow them to appear to oppose bad legislation while ensuring that it passes; resolutions that “censure” or hold “in contempt” lawless officials they lack the nerve to impeach; and, on occasion, big-wind, no-rain lawsuits.
The latter species of gamesmanship is not in Congress’s constitutional arsenal precisely because political accountability is the foundation of representative self-government. Public-policy matters — such as, who should be entitled to subsidies in a convoluted central-planning scheme — must be decided by elected officials who answer to the voters, not by politically unaccountable judges. In the absence of some constitutional defect (and there is nothing inherently unconstitutional about the political class’s inveterate practice of insulating itself from the effects of the crummy laws it enacts), the “political question” doctrine requires courts to butt out.