08/05/2014 02:33 pm ET Updated Oct 05, 2014

Boehner Law Suit Dismissed; Fix Constitutional Dysfunction

Dismiss the Boehner lawsuit. Address actual government dysfunction.

Ahh Summer. It used to be thought that in August with Congress adjourned and the Supreme Court out of town extolling high jurisprudence in exchange for European junket, and the president seeking his own hideaway, that the liberty and property of one's fellow citizens was now safe. The average American could now deploy his own "gone fishing" placard with at least a degree of less anxiety.

Yet, the summer of 2014 is anything other than an anxious time. Far too many remain out of work and far too much of improved employment numbers seem to depend on those who have given up. The carnage of sectarian violence abroad is only outdone by the video games we permit our children. Civil airliners are the prey of Russian abetted aggression. The Middle East is at war, with Israel pressing the understandings of the world community to dislodge the terrorist ways of Hamas that had been given an unfortunate boost by alliance with the Palestinian Authority. And while our friendship and admiration and respect for the Jewish people is deep; it is now matched by the profound contradiction of Israel's anger with Sec. Kerry for taking the side of human rights against Israel's targeting of UN-sponsored schools and medical facilities.

Elsewhere, the nations of the Arab Spring have yet to experience the thaw of ethnic or religious or terrorist chaos. In Libya and Egypt there is less democracy fostering new investment or economic growth than one would have hoped. In Libya, local militias now deploy our recently donated, expensive weapon systems to rid themselves of tyrannical oppression. But the difficulty of addressing terrorist violence and sexual abuse and human trafficking has shown up far closer to our own door than North Africa. We are embarrassed by the prospect of turning children from Central and South America back to face often certain death. Cynically, the Ebola virus assuages the confusions and genuine limitations of our compassion.

The environmental climate yields drought and wildfire, but no change or moderation in our dependence upon carbon-based fuels, for changing entrenched energy usage is no more tractable than reforming immigration or healthcare. The best one can say for this Congress is that it has made the perfect the enemy of the good and consciously chosen to do neither. Having sought and failed to repeal o more than two score occasions, the president's signal achievement in health care, President Obama is headed for Hawaii but not before being named a defendant in a lawsuit that purports to sue him for doing too much by himself.

The president's popularity remains at a low ebb, even as those of us who gave him our votes, and support him still , are rightly troubled by the disregard of the rule of law that Executive Order government suggests. Nevertheless, some perspective is needed. For an administration to have gone nearly six years without much in the way of internal special investigation is something of a record. Unlike the Nixon, Bill Clinton, and George W Bush administrations, we have been spared the futility and the cost of independent counsels who in the past have turned out to be more interested in scoring partisan points than securing the interests of justice. Now however in the midst of everything else, the impeachment word is on the lips of Washingtonians. Having a jaundiced view of it all, it is rumored that both sides have silently conspired to have the word enter daily discussion to stoke the wasteful fundraising for the forthcoming midterm and presidential elections.

What? The President's impeachment advocated by the president's own supporters? Sure, why not? Machiavelli lives! In the party dominated wonderland that Washington has become, you not only cannot tell the players without a program, but don't count on discerning much with it either, for presidents may enforce that which they don't defend (see, e.g., the Defense of Marriage Act), and Supreme Court justices may uphold that which they regularly oppose.

The Supreme Court under Chief Justice Roberts has avoided much, but not all, of the controversy of the day with long discourses on opposing views that in the end prompt their own frustrating query: "We trust we make ourselves obscure?" For now, the Chief Justice has successfully neutered his court, by neither definitively uniting those of the same gender nor using the law to de-couple them. Justice Ginsburg may be right that the court will not be able to avoid this question indefinitely, but like the do-nothing Congress, that which is indefinite is by definition tomorrow and it can wait.

The Chief Justice is only an occasional wildcard in the judicial hand. Even the man on the street knows of Justice Kennedy's Hamlet-like equivocation. Yet, it is not Anthony Kennedy's penchant to see gray that troubles the judicial record, for individual equity especially at the Supreme Court level is unavoidable. No, it is more the black and white of Justice Scalia and his own peculiar way of declaring white to be black and black to be white still dominates the Court's jurisprudence in unfortunate ways that ironically subvert democratic choices in the name of protecting them. Justice Scalia the prophet of original understanding persists in claiming disingenuously, but entertainingly, to be defending the humility and restraint of the judicial role even as he unleashes an historically anomalous personal gun right of and undetermined scope contrary to the legislative choices made at both federal and state levels. With curiously telltale repetition, the partisan origins of judicial officers remains the best predictor of judicial outcomes, which try as John Roberts may, means the Court represents the prize most often offered to voters to overcome governmental dysfunction.

James Madison has been proven right anticipating that the judiciary would make the protection of individual liberties special object of its efforts. However, it is error to expect the least accountable, nondemocratic branch to preserve democracy, itself. Government dysfunction requires a modern reappraisal of the separation of powers in terms of basic expectations of accountability and efficiency and not just the avoidance of tyranny.

There are many reasons why the lawsuit launched against Barack Obama will fail. Ask any first-year law student about the basic doctrines of standing, causation and redressability. True, as suggested, not every member of the court has understood how judicial independence is given in exchange for the abandonment of partisan ideology. Nevertheless, the partisanship of this lawsuit is so transparent that one assumes that no member of the court could without serious embarrassment find a constitutional violation under precedents as they exist. The judge to whom the case is assigned would do well to dispose of the matter quickly with a succinct reminder of the wisdom of Robert Jackson: that: "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."

To avoid our present dysfunction, we must modify House and Senate rules that elevate the party and ideology over the formation of a workable government. The tradition of separated power will continue to secure our liberty. It is the interdependence and the reciprocity that is understated. Over the next few weeks and months, I will be using this column to elaborate on possible constitutional reforms. Some of the proposals will reflect my own recent Congressional campaign efforts as well as recent developments regarding my offer of service for the vice presidency, anticipating the kind of reform that a Hillary Clinton presidency will practically demand and will realistically deliver.