Boehner is about to file a suit to force the president to obey the law. He may or may not have standing to do so. But there’s a better way, one we already know works.
The root of the problem is: can the president order his branch to ignore or defy the law, to act in an illegal manner?
That sounds like a silly question. But the fact is that every employee, manager and executive in that branch of government is bound FIRST by the law and THEN by the head of that branch of government
We have heard the constant refrain under Obama of “prosecutorial discretion.” Yet Article 2, Section 3 of the Constitution has no such ambiguity. The president “shall take care that the laws be faithfully executed.” It does not task the president to execute the laws faithfully according to his discretion.
America has at this point two armed organizations of the federal government: DOD & DHS. Both are subject to laws first. Both have codes of conduct. We know what happens when illegal orders – orders that have no basis in law – are given and followed by military personnel: Lt Calley & the My Lai massacre. Calley went to prison for following an illegal order. By choosing his orders over the law he flouted that law – and was prosecuted.
Why is DHS different? The law requires that the border is enforced. No order from anywhere in the DHS chain of command can legally flout that law. No order to do so is a legal order. Following an illegal order… is illegal.
The president is not outside or above the law. Any order he gives to break – or to not enforce – the law is an illegal order. Any manager or employee of DHS obeying an illegal order – MUST – be prosecuted as was Lt Calley, or we become a nation under the rule of man – a dictatorship – rather than under the rule of law – which is America.
We are a nation of laws. They apply to everyone. Disobeying them – even if ordered by the president to do do – is illegal.
Rather than suing the president, a risky move fraught with ramifications, Boehner, or perhaps the governor of a State, should pick one or more field managers, the equivalent of the lieutenant that Calley was, and prosecute him or her. Then another. Then another.
This will of course wind up in SCOTUS where it belongs. But in the interim lots of ICE officers will begin doing – rather than ignoring – their duties.
We are in a Constitutional crisis. Experimenting with new thoughts on litigation is suboptimal – and may not work. And may take too long. We have a proven way forward based on My Lai.
We need to use it.
If an ICE agent is sued by a governor for not obeying the rule of law, what defense will the MSM or liberal politicians out forth? What answer will they have to an analogy to My Lai?
None. For there is none.
The executive branch must be forced back to the Rule of Law. We are NOT a dictatorship. If guys at the bottom must take the heat, well, they chose to follow illegal orders. Bad choice.
People will ask, what choice did they have? They’d have been fired!
In 1973, Attorney General Eliot Richardson was ordered to fire Special Prosecutor Archibald Cox on pain of firing. He refused and was fired. He chose the nation and the Rule of Law.
How can we expect to live under the law if we excuse those disobey it, even when ordered to do so?