On Eric Holder’s Departure

At AEIdeas John Yoo writes:

The nation can wave goodbye to Attorney General Holder with relief, as to a bad house-guest who almost burned down the house during his unwelcome stay. His political missteps were legion, and his choices on law enforcement policy revealed a stunning combination of ideology and incompetence. He called for the trial of Khalid Sheikh Mohammed and other al Qaeda leaders in downtown New York City, for example, which showed a failure to understand our war on terrorism. He accused Americans of being a nation of cowards on race while dropping prosecutions of voter intimidation in Philadelphia. He made a terrible error of judgment on sending guns that ended up in Mexico and then made the mistake of stonewalling Congress’s effort to investigate — leading to the unprecedented citation for contempt of a sitting attorney general.

But worst of all was not Holder’s political or prosecution choices, but his refusal to obey the Constitution. The AG is the nation’s law enforcement officer, second only to the president. His most important and unique job is to interpret and enforce the Constitution for the executive branch. 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.

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