November 15, 2014
The New York Times
IN the months since President Obama first seem poised — as he now seems poised again — to issue a sweeping executive amnesty for millions of illegal immigrants, we’ve learned two important things about how this administration approaches its constitutional obligations.
First, we now have a clear sense of the legal arguments that will be used to justify the kind of move Obama himself previously described as a betrayal of our political order. They are, as expected, lawyerly in the worst sense, persuasive only if abstracted from any sense of precedent or proportion or political normality.
Second, we now have a clearer sense of just how anti-democratically this president may be willing to proceed.
The legal issues first. The White House’s case is straightforward: It has “prosecutorial discretion” in which illegal immigrants it deports, it has precedent-grounded power to protect particular groups from deportation, and it has statutory authority to grant work permits to those protected. Therefore, there can be no legal bar to applying discretion, granting protections and issuing work permits to roughly half the illegal-immigrant population.
This argument’s logic, at once consistent and deliberately obtuse, raises one obvious question: Why stop at half? (Activists are already asking.) After all, under this theory of what counts as faithfully executing the law, all that matters is that somebody, somewhere, is being deported; anyone and everyone else can be allowed to work and stay. So the president could “temporarily” legalize 99.9 percent of illegal immigrants and direct the Border Patrol to hand out work visas to every subsequent border crosser, so long as a few thousand aliens were deported for felonies every year.
The reality is there is no agreed-upon limit to the scope of prosecutorial discretion in immigration law because no president has attempted anything remotely like what Obama is contemplating. In past cases, presidents used the powers he’s invoking to grant work permits to modest, clearly defined populations facing some obvious impediment (war, persecution, natural disaster) to returning home. None of those moves even approached this plan’s scale, none attempted to transform a major public policy debate, and none were deployed as blackmail against a Congress unwilling to work the president’s will.
And none of them had major applications outside immigration law. No defender of Obama’s proposed move has successfully explained why it wouldn’t be a model for a future president interested in unilateral rewrites of other areas of public policy (the tax code, for instance) where sweeping applications of “discretion” could achieve partisan victories by fiat. No liberal has persuasively explained how, after spending the last Republican administration complaining about presidential “signing statements,” it makes sense for the left to begin applying Cheneyite theories of executive power on domestic policy debates.
Especially debates in which the executive branch is effectively acting in direct defiance of the electoral process. This is where the administration has entered extraordinarily brazen territory, since part of its original case for taking these steps was that they supposedly serve the public will, which only yahoos and congressional Republicans oppose.
This argument was specious before; now it looks ridiculous. The election just past was not, of course, a formal referendum on the president’s proposed amnesty, but it was conducted with the promise of unilateral action in the background, and with immigration as one of the more hotly debated issues. The result was a devastating defeat for Obama and his party, and most polling on unilateral action is pretty terrible for the president.
Which is why the thinking liberal’s move, if this action goes forward, will be to invoke structural forces, flaws inherent in our constitutional order, to justify Obama’s unilateralism. This won’t be a completely fallacious argument: Presidential systems like ours have a long record, especially in Latin America, of producing standoffs between executive and legislative branches, which tends to make executive power grabs more likely. In the United States this tendency has been less dangerous — our imperial presidency has grown on us gradually; the worst overreaches have often been rolled back. But we do seem to be in an era whose various forces — our open-ended post-9/11 wars, the ideological uniformity of the parties — are making a kind of creeping caudillismo more likely.
But if that evil must come, woe to the president who chooses it. And make no mistake, the president is free to choose. No immediate crisis forces his hand; no doom awaits the country if he waits. He once campaigned on constitutionalism and executive restraint; he once abjured exactly this power. There is still time for him to respect the limits of his office, the lines of authority established by the Constitution, the outcome of the last election.
Or he can choose the power grab, and the accompanying disgrace.