WASHINGTON – The danger as Andrew McCarthy sees it, is giving President Obama a stamp of approval, if a congressional lawsuit against him backfires.
The Fox News analyst, National Review columnist and former federal prosecutor argued in his new book, "Faithless Execution," it isn't feasible to impeach the president without public support, and a failed effort could just remove any remaining brakes on his authority.
McCarthy told WND he sees the same danger in the lawsuit brought by Congress claiming the president overstepped his authority when he unilaterally decided to delay implementation of the employer mandate in the Obamacare law.
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The danger is a failed attempt would just allow Obama to claim he was right all along to choose which laws to enforce and to rule by executive orders.
And that would set a dangerous precedent.
"There is no question about President Obama's lawlessness. The questions is, what to do about it," McCarthy told WND after participating in a Judicial Watch panel titled, "Holding President Obama Accountable to the Rule of Law."
As long as most of the public doesn't perceive a problem with Obama's lawlessness, McCarthy sees Congress as having few options, because lawmakers will be reluctant to take risks they perceive could carry a political price.
But that doesn't let Congress off the hook in his eyes. In fact, it may indicate a serious lack of leadership among top Republicans.
"Reagan-era Republicans thought it was their job to move public opinion" toward what they believed was right, McCarthy told WND.
But, he said, "Today's GOP seems to feel it is their job to move toward public opinion."
That makes the prospect of impeaching or successfully suing the president unlikely because, "Until they (lawmakers) make presidential lawlessness a big issue, the public won't see it that way."
And that gives Obama a lot of freedom to do what he wants, the former prosecutor explained, because, if no one reins him in, it's a matter of "how much he can get away with."
When asked to consider a hypothetical worst-case scenario about what might happen if Obama ever were to declare martial law, to make a point, McCarthy wondered rhetorically, if he did it in San Francisco, "Would they really complain?"
That point was the only real check on Obama's authority now is public opinion.
And, he said, it highlighted an important question: How much is the public willing to put up with before it objects, and would many on the Left not object to being ruled by Obama?
The issue, McCarthy explained, is no longer about removing the president from power but stopping from him doing many of the things he wants to do, such as expanding amnesty to millions of more illegal immigrants.
His fellow panelists agreed there was no question about the gravity of Obama's lawlessness and penchant to rule by executive order.
The event was hosted by Judicial Watch, the conservative government watchdog group that has had so much success using the court system to get information on the IRS and Fast and Furious scandals where congressional committees have been often stymied.
Judicial Watch President Tom Fitton moderated the discussion with McCarthy and House Judiciary Committee Chairman Bob Goodlatte, R-Va.
Fitton made the point that ruling by executive order has already become "the new normal under Obama."
He cited how, rather than using the legislative process, Obama first establishes the programs he wants and then Congress has to try to repeal what it doesn't like.
Fitton said it reduces the rule of law to a game of "Catch me if you can."
As an example, he noted how Obama's executive decision to not deport half-a-million illegal immigrants who arrived in the country as children has effectively rewritten immigration law, with Congress virtually powerless to stop it.
Making matters worse, Fitton observed, was the viral nature of executive lawlessness.
He pointed to governors deciding to no longer enforce marriage laws and how "failure to enforce law becomes contagious."
"It's become a political movement on the left," he observed, "to decide what they want to enforce."
McCarthy said Obama had perverted the concept of prosecutorial discretion by using it as a license, essentially, to repeal laws the president doesn't agree with.
The attorney acknowledged the president does have an obligation to not enforce laws he thinks are unconstitutional.
"But he's doing it to not enforce laws with which he has political differences, laws he doesn't like, not ones that are unconstitutional," he explained.
McCarthy said the president's first obligation is to make sure laws are faithfully executed, and he must enforce laws as written, whether he agrees with them or not.
He cited how all Supreme Court nominees pledge to uphold laws they may disagree with, such as Roe v. Wade.
"The president has actually taken oath to execute laws faithfully, and if he doesn't, our whole system collapses."
Goodlatte defended the attempt by Congress to sue the president over his failure to enforce Obamacare as it was written and passed into law.
He said if Obama is left unchallenged, future presidents will feel free to enforce just the parts of a laws they like.
The congressman endorsed "any way you can find to pin back someone who's abusing power."
He said as equally appalling as the president's two dozen abuses of power was his disregard for Congress.
Goodlatte said he was stunned when the president lectured Congress over immigration reform and told lawmakers "If you don't do it, I will," and when he said, "I've got a pen and a phone."
He said he was also stunned by Democrats who gave him a standing ovation for threatening to seize power.
McCarthy said one of the major problems with a lawsuit, was, even if Congress won, "What's to say the president will honor the ruling?"
There is no way to enforce the result against a president who refuses to enforce the law, he noted.
Goodlatte understood that argument, but said, while the courts do not have an army to enforce the law, Congress doesn't, either.
Agreeing with McCarthy's main point, the congressman noted, "The judgment of the people must be brought to bear. None of these tools are perfect, but we must use what we've got."