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February 12, 2014 1:10 PM See You In Court, Legalists

By Ed Kilgore

To an ever-increasing extent, the Republican case against Barack Obama’s presidency is focused on the idea that he’s a scofflaw. He’s ignoring the plain meaning (sic!) of the Affordable Care Act! He’s circumventing Congress with executive orders! He’s blatantly using the IRS to persecute conservatives! He’s thumbing his nose at the Constitution!

He’s doing none of these things, of course, even if you violently disagree with his policies in every one of these cases. He (a lawyer married to a lawyer) and his lawyers have lawyerly arguments for every single step he and his agencies have taken. Maybe they are valid and maybe they are not; most likely they fall into grey areas. But he’s not “defying” the law, and if you believe his actions are illegal, there are places to make that case. They are called federal courts.

Conservatives are obviously not averse to challenging the administration in court, particularly on Obamacare (though most of the challenges—most recently to the use of Obamacare subsidies to pay for insurance purchased in federally created exchanges—haven’t been very successful). But so far as I know, the administration is duly filing motions and making arguments when challenged in court, not ignoring summons or giving judges a raspberry. And while federal judges are disinclined to police pure separation-of-powers arguments, they have a long history of interpreting statues, including statutory grants of executive discretion. So please, let’s stop acting as though there is no remedy for Obama’s allegedly “lawless” acts, which at some point are likely to make trigger-fingers itchy among those Second Amendment absolutists who think they have the right to depose “tyrants” by revolutionary force.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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