Cookeing with gas

JULY 11, 2014 5:30 PM

John Boehner’s Legal Lesson 
At least the Obama suit will pull back a bit the ignorant pall of our political culture. 

By Charles C. W. Cooke

So nice of the National Review to hire German immigrants to write the subheads, putting "back a bit" on the German side of the sentence object. But what exactly is a "pall" in this context? It looks like a piece of cloth used to cover some kind of ritual object—a communion chalice or a coffin—but which? And does that mean our political culture is one or the other? And why would a pall be ignorant? (as opposed to a "pall of ignorance", which is a fairly normal phrase, not to say a cliché).

The pall is the thing like a mortarboard on top of the chalice. I guess it's the kind over the coffin that could be pulled back, and that Cookie has in mind, but this is a cheerier picture. Via Jet Buenconsejo.

That Obamacare and not immigration is the proximate target should surprise nobody who is attuned to contemporary politics.

Oh, no, look, Germans are writing the article too. Or is that just the ghost of Charles Curds 'n' Whey Cooke's fifth form tutor saying, "You need to vary your sentence structure, Charles, dear boy."

Health reform remains a rich source of opportunity for the GOP; immigration an electric fence.

"And nothing, dear boy, shows real elegance like a judicious use of figurative language", leaving us with that unsettling picture of the Grand Old Party as a herd of cows nourishing themselves at the trough of the Affordable Care Act while careful not to jump over immigration into somebody else's pasture, which would give them a nasty shock.

But to obsess about the specifics of the assumpsit would be a mistake.

My, my, is that Latin? (Wouldn't old Mr. Buckley have just swooned over that touch?)

It is Latin, and more precisely the 3rd-person singular present perfect of assumere, meaning, "he or she has undertaken", and refers, Wikipedia tells me, to a legal formulation that has only been obsolete in the United States since 1938 (in England they dumped it in the early 1870s); it used to be the term for the promise a defendant had made in a breach of contract action. And the reason you shouldn't obsess over it, I guess, is that in the matter of Boehner vs. Obama there isn't one: I don't believe you can make a case that Obama promised Boehner, "I will never, never delay or otherwise modulate any provisions in executing a law you guys have passed," or that Boehner incurred any monetary or other losses from Obama's failure to stick with this.

The subject of the complaint, in fact, is what assistant secretary of the treasury Mark Mazur described as a familiar bureaucratic case of "transition relief":

Via House Committee on Energy and Commerce.

The idea that there's anything actionable in this thing gets more and more implausible by the minute. Cookie complains,

Boehner’s complaints are fundamental: first, that the Obama administration has taken to rewriting the law for its own political gain; second, that the Democratic Senate, being evidently more jealous regarding its political agenda than its constitutional prerogatives, is content to sit by and permit the usurpation.

Gosh, maybe Boehner ought to be suing the Senate, for lèse-majesté against itself, treating actual legislative accomplishment as if it were somehow just as important as that august body's ancient prerogatives. He could argue that the force of the example it set was to make him look like a buffoon.

Cookie can hyperventilate as much as he likes (which is a lot!), but the Constitution is clear: if the president fails to obey the law, the remedy is impeachment. If the president were actually defying the law, for example by arming an insurrection against the sovereign government of Nicaragua against the express and legitimate commands of Congress, or monitoring the phone calls and emails of US citizens without a FISA warrant (no, none of Snowden's evidence suggests that Obama has done that, but we knew seven years ago that Bush did), that would work. Though I don't recall anybody trying very hard.

But if there isn't a case for impeachment, there isn't a case. It's not like when you can't get a murder conviction, the way Trayvon Martin's family is right to sue George Zimmerman, for violating the young man's civil rights. There's no tort, and in particular no "assumpsit".

One can all too easily imagine Charles I telling the audience at Westminster Hall that he was being executed for “doing his job.” Instead, Charles faced the ax for precisely the same reason that Barack Obama will find himself in court: for usurping powers that were not his, and for undermining the rule of law and parliamentary representation that are the birthright of every free man.

Not at all: Charles I did not conceive of himself as having a "job". He saw himself as having exactly what Cookie (wrongly) says the US Senate has, a prerogative more important than any specific action he might perform and which, in his view, the Parliament was trying to usurp. Cookie has it exactly backwards; it was Parliament that might have said it was "doing its job" in demanding a share in the power structure.

And poor Charles had a pretty good Tory case of ancient precedent on his side, too, not that the Parliament didn't have a pretty good case of ancient baronial precedents of its own. History, though, that liberal slut, ended up as she always does on the side of change.

There's a lot more case to answer in C.C.W.'s essay, couched in a lot more curdled prose, but it really isn't based on anything. The president may be stepping a bit into the power vacuum created by Congress's refusal to act on the issues of immigration and the environment, but using precisely the kind of flexibility the Constitution provides in giving him the executive power, including deciding what order to do stuff in. The remedy for that, you know, if Congress doesn't like it, is for Congress to do some legislating—as the president keeps saying. Boehner's frivolous lawsuit is nothing but a confession that he's unable to do his own job and looking for somebody else to blame.

Oliver Cromwell didn't think much of Parliament either, by the time he ended up throwing them out in 1653; "It is high time for me to put an end to your sitting in this place, which you have dishonored by your contempt of all virtue, and defiled by your practice of every vice. Ye are a factious crew, and enemies to all good government. Ye are a pack of mercenary wretches, and would like Esau sell your country for a mess of pottage, and like Judas betray your God for a few pieces of money. Is there a single virtue now remaining amongst you? Is there one vice you do not possess? Ye have no more religion than my horse. Gold is your God. Which of you have not bartered your conscience for bribes? Is there a man amongst you that has the least care for the good of the Commonwealth?"