While their tremendously incompetent disaster of a healthcare rollout has President Obama more or less making up new rules and interpretations of his crowning legislative achievement as he goes along, you might think that the Obama administration would be ever so slightly humbled and taking care to rein in their usual “we do what we want” attitude on other matters — but alas, that’s still their prevailing modus operandi on their other sidelined disasters, too.
Back in September, a federal judge ruled that the Obama administration could not have the lawsuit over the administration’s executive-privilege pull in the Operation Fast and Furious case (the deadly gunrunning scandal in which the ATF pressed American gun dealers into funneling at least 2,000 weapons to Mexican straw purchasers with no practical efforts to trace the weapons) thrown out, basically because they just didn’t feel like dealing with it. The Obama administration had invented some argumentative blather about the federal courts having no basis for arbitrating the dispute because it would mean that all document fights between Congress and the administration could end up in court rather than being resolved through good-faith negotiation, or something.
District Court Judge Amy Berman Jackson (an Obama appointee, by the way) all but laughed that silly excuse out of court: “Dismissing the case without hearing it would in effect place the court’s finger on the scale, designating the executive as the victor based solely on his untested assertion that the privilege applies. … The Court rejects the notion that merely hearing this dispute between the branches would undermine the foundation of our government, or that it would lead to the abandonment of all negotiation and accommodation in the future, leaving the courts deluged with subpoena enforcement actions,” she wrote — and the Obama administration certainly didn’t like that.
Ergo, on Friday evening, they filed their appeal to that obviously egregious, does-not-apply-to-them enforcement of a little ol’ constitutional mechanism called checks and balances, via Politico:
The new motion (posted here) asks Jackson to allow the U.S. Court of Appeals for the D.C. Circuit to weigh in on that question before the case continues.
“Absent settlement (which depends on the willingness of both parties to achieve a negotiated resolution), or an immediate appeal, this Court will proceed toward deciding the scope of the President’s assertion of Executive Privilege in response to a congressional demand, and will do so absent a definitive ruling from the Circuit that such a novel judicial inquiry, in a suit instituted by a Committee of Congress, is appropriate under the law, including the Constitution,” the DOJ motion argues.
“The very experience of participating in such proceedings will cause harm—to the Defendant, the Executive Branch, and the separation of powers—that cannot be reversed if the D.C. Circuit ultimately rules in Defendant’s favor on the threshold questions presented,” the motion says. “In light of the harm to the separation of powers that such an adjudication would entail, including the impact of such proceedings on the negotiation process between the political Branches—a process that has generally proceeded without judicial involvement since the inception of congressional oversight—Defendant’s jurisdictional objections should be resolved by the Circuit before this Court takes such a momentous step.”
These guys just won’t quit.