Randy Barnett points to a revolutionary groundbreaking article on constitutional review:
[T]he important point is that any legislative violation of the Constitution is complete at the moment of enactment, and any subsequent facts must be irrelevant to the merits; whereas an executive violation of the Constitution happens later, and the facts of execution may be essential to the inquiry. So if the who is Congress, then the challenge is more likely to be ripe earlier—indeed, most strikingly, it might be ripe immediately after enactment, and before any enforcement whatsoever.
I haven’t read the whole thing, so it may be covered, but from the excerpt, it seems to me that it isn’t just Congress that is the “who.” Once the president signs an unconstitutional law, he becomes a violator as well (as Bush knowingly, even admittedly did when he signed McCain-Feingold, willfully violating not only the Constitution, but his oath of office — if you wanted an impeachable offense, that one seemed prima facie to me).
Problem is, with the fox guarding the hen house no impeachments to follow.
If the Constitution only prohibits Congress from doing something, then the President is not directly violating the Constitution if he signs a bill that does whatever it is. However, he did take an oath, and by facilitating Congress’ constitutional violation, he’s breaking that oath. Since the oath is constitutional, he would be violating that part of the Constitution.
I would sure love to see sanctions imposed against a president for breaking that oath.
Read the whole article. It’s incredible. The author is going to be a superstar after this.