So let’s see: on the one hand, Obama is refusing to defend a duly signed, bi-partisan enacted law that has withstood legal challenge for 16 years. On the other hand, President Bush defended a law his administration crafted and asserted did not violate the Constitution — a debatable point that took us into the weeds of NSA data mining, ECHELON, the physicality of binary code in space, and legislative record with respect to FISA and its legislative intent.

Yet the argument being proffered now is that because I criticize Obama for NOT doing what is clearly the job of his Justice Dept, I should have been criticizing Bush for what he thought WAS the job of his administration — arguing for the constitutionality of a law that had not been ruled unconstitutional?

Really?

And yet, I’m the buffoon.

— Putting me in the company of other right wing cranks. Like, for instance, the WaPo editorial writers:

As a matter of policy and simple decency, the position is correct. And in acting decisively, the administration has given Congress fair warning that it should step forward to defend the statute if it so desires. But there are potential pitfalls for how the president and the attorney general chose to advance these principles.

The Justice Department is institutionally tasked with defending duly enacted congressional legislation. This does not mean that Justice Department officials must believe in the wisdom of the law or its policy implications, only that there are good-faith and reasonable arguments to be made in its defense. It is, in short, a very low bar. That is the approach taken by former solicitor general Theodore B. Olson in robustly defending a campaign finance reform law that citizen Olson – a conservative Republican – would surely have rejected.

The Obama administration’s tactic could come back to haunt it. What would the president say, for example, if a conservative Republican administration in the future attempted to sabotage the Obama health-care initiative by refusing to defend it against constitutional attack?

Here’s the thing: I do believe the branches of government are co-equal — and that if we don’t allow for the check on the Supreme Court constitutionally afforded us by a paradigm of co-equal branches, we may as well recognize that we are living under the rule of 9 philosopher kings, not in a democratic republic.

Having said that, what Obama is doing here is not refusing to abide by a legal decision passed on by a divided court that overrules lawmakers elected to represented the will of the people. Instead, he is refusing to defend established US law — passed by a large bi-partisan majority and signed into law by a Democrat president, and repeatedly upheld by courts. Current court orders need not be followed by Obama; past legislation need not be defended; states who don’t agree with him will be sued, or their governors harassed. And Obama will pick and chose who will be affected by his health care legislation, and who will receive a waiver to save them from its effects. But calling Obama a dictator? Outrageous!

I’m not surprised some are pretending not to notice the differences between what Obama is doing and what the Bush administration did. But then, if you’re still pointing and yelling “BOOOOSH!” this late into the game, you probably don’t have much left in the quiver.

Not to mention what is now being made so sadly obvious: that all that shrieking from the left about the horrors of an “imperial presidency” was as disingenuous then as their pretending that Obama’s decision is constitutionally — rather than politically — motivated now.

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update: Lemieux agrees that super-precedent and stare decisis are bogus conventions — and that judges like Clarence Thomas represent the highest order of judicial thinking. Similarly, he makes a strong case for enumerated powers as a constraint on the powers of government.

A federalist is born!