That’s the argument some right-wing lawyers are making. My own reaction was not dissimilar to that of the Florida congressman who said “If Obama cured world hunger, the Republicans would accuse him of causing overpopulation.”
Jack Balkin, the eminent Yale legal scholar who blogs at balkinization, says it more eloquently–and more authoritatively.
This episode has led me to two conclusions. First, the Washington Post Op-Ed section does not appear to have a lawyer on hand to keep it from embarrassment. It does not take much research to discover that the argument in this piece is frivolous. But no research was done.
Second, I have noticed an increasing lack of seriousness among some members of the modern conservative movement. We see it in the tea party protests, in the work of talk show hosts and political commentators, but now even in the work of accomplished lawyers and intellectuals who should know better. It is one thing to disagree with a sitting president’s policies, but in our deeply polarized and poisonous political environment, an increasing number of politicians, operatives, and intellectuals now proclaim almost reflexive opposition to anything associated with President Obama or anything he does, says, or supports. Indeed, in this case, Rotunda and Pham have gone well past arguing that things that President Obama favors are unconstitutional; now they argue that things are unconstitutional because somebody wants to honor him.
It is increasingly difficult to parody what politicians and intellectuals will now say or do. Anything one can think of is already topped by the Washington Post and Wall Street Journal editorial pages.
This may be good politics, but I doubt it. It is certainly not sound legal argument.