Will Eric Holder's chickens come home to roost?

One of the most formidable conservative legal minds, John Yoo, thinks “Eric Holder Will Regret His Recklessness.”

On Holder’s watch, the Obama administration has refused to carry out the laws, as required by the Constitution’s Take Care Clause, in areas ranging from Obamacare to immigration to welfare. The only exception to the president’s duty to carry out the acts of Congress is if the laws themselves are unconstitutional and hence violate the higher law. But in all of these cases, the Obama administration knew that these laws raised no constitutional problems — it merely disagreed with the policies, even with laws that it supported during enactment. Obama and Holder created for themselves a second, absolute veto on acts of Congress.

Holder and his supporters, who know these decisions violate the Constitution but kept silent because of their partisan support for Obama, will rue their abuse of presidential power. Future presidents will be able to change tax rates or refuse to prosecute political supporters under these theories. Future conservative presidents may use the same claim to start dismantling the overgrown welfare state without the assent of Congress. We happily see Holder go, but he will have more regret not just looking back at the controversies that wracked the Department of Justice under his care, but when he ponders the future when conservative AGs turn his precedents against the bloated welfare state that he loves.

While it certainly would seem to be sweet revenge for an imagined future conservative president to dismantle much of the left’s handiwork, I am far from eager to embrace a caudillo regime such as this. It is not the constitutional republic designed by the Founders, but more of a dictatorship.

If a conservative president were to ratify this approach to governance, we would lose whatever shreds of constitutional protections we maintain (I admit that it currently seems as though we have already lost a lot of them).

There is reasonable counter-argument: only we give the left a taste of its own medicine can we get them to abandon their tactics. A GOP president operating in the same high-handed manner as Obama might spark a serious reaction. In general, I do not favor fighting by Marquis of Queensbury Rules against an opponent using Mixed Martial Arts against us, which often seems to be the case in the battle between the GOP and the Left.

But when the issue is the Constitution, I am extremely reluctant to abandon the rulebook. It is all we have, and it has worked for the most part. Before we give up on it, we must pursue the remedies -- up to an including an Article Five Convention, if necessary -- it offers.

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