More important, as a response to executive lawlessness, a lawsuit is a non sequitur. When a president is running roughshod over the law, it is not the law itself that needs vindication — it is the faithful execution of the law. What makes the law the law is its legislative enactment; it needs no judicial imprimatur to command our compliance. As Jefferson and Lincoln understood, the judicial branch is mainly there for the resolution of private disputes, not political controversies. Congress does not need a court ruling to conclude that its clear statutes have been violated. It did not, in 1974, require an advisory judicial opinion that Richard Nixon had attempted to obstruct justice and abuse the IRS in order to establish that these derelictions had occurred.
The problem we have at the moment is not a lack of certainty about what the law is; the problem is the executive’s refusal to execute the law faithfully. The federal courts are impotent to address that — as several judges who have ruled against the Obama administration over the last six years have learned. Courts have no capacity to enforce their judgments. Law enforcement is a plenary executive power, and thus any court judgment against Obama would have to be enforced by . . . Obama. That is not going to happen.
A judge’s ruling that the president is violating the law would have exactly the same practical effect as Speaker Boehner’s whining that the president is violating the law: none. Neither Mr. Will, nor Speaker Boehner, nor the lawyers on whom they rely offer any answer to this fatal flaw in their lawsuit gambit.
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