Anatomy of a Power Grab
August 5, 2014 12:06 pmAugust 5, 2014 12:06 pm
Since my Sunday column was a little on the shrill side, accusing President Obama of contemplating domestic policy “caesarism” on immigration policy, I thought I’d do a follow-up addressing the various, “maybe you should calm down” objections.
1) How can you accuse the president of planning a power grab when we don’t even know what he’s planning to do?
Well, actually, we do know roughly what he’s considering, because White House sources keep telling the media about it. Read National Journal’s Major Garrett a month ago, or read the Washington Post on Saturday. The message is clear, the details consistent: Obama is considering a change to immigration policy that could ”enlarge … by a factor of 10″ the numbers involved in his 2012 deferred-action program for aliens who arrived illegally as minors, reshaping enforcement dramatically and affecting as many as “5 million illegal immigrants” overall. So pace Matt Yglesias, I’m not “preemptively slam[ming] the illegality” of an “as-yet-unknown measure.” I’m passing judgment on a known-but-not-implemented measure, which the White House keeps running up the flagpole to see who objects and who salutes.
Of course the actual implementation might never come, and the leaks might be part of a different strategy whose contours we can’t discern right now. But the best time to criticize an under-consideration abuse of power is usually before it happens, and the best way to analyze what’s actually being considered is to take the White House at its current word. If Obama doesn’t actually follow through on what’s being promised/threatened, and my criticism looks overly-alarmist in hindsight, then good: That’s a sign that it had its intended effect.
2) Fine, but then you’re wildly overstating the impact of what’s being proposed: It certainly isn’t “amnesty,” and isn’t really legalization, it’s just a change in deportation and enforcement priorities.
No, it’s more than that. Immigrants affected by the policy wouldn’t just know that the United States isn’t going to move heaven and earth to deport them — something that’s already true in most cases, which is why Eric Posner, writing in the New Republic, feels comfortable casting the move under consideration as just the formal acknowledgment of “current practice.” (He also feels comfortable because he’s an explicit presidential caesarist, something liberals inclined to invoke his arguments might want to keep in mind.) But he’s wrong: Current practice may includes at best a modest risk of deportation for individuals here illegally, but it does entail some risk, both for the immigrants themselves and for employers who hire them, because the laws are on the books and at least partially enforced. Whereas Obama’s proposal would make that risk go away, by formally changing the status of the people affected: They would become lawful residents, with work permits and Social Security numbers. The White House would grant them, in other words, roughly the kind of provisional status that’s been a sticking point throughout the Senate and House debates on this issue. Obama wouldn’t just be sparing illegal immigrants deportations or exercising prosecutorial discretion in who gets deported; he would be legalizing them.
3) Okay, but only temporarily, right? You said this could “settle” a big part of the immigration debate. But if you don’t like it, the next G.O.P. president can roll it back.
Sure, in theory, but come on: That’s not how anyone on the left is actually looking at this idea — the assumption is that what’s done won’t really be undone, because loss aversion is too powerful, what’s given is hard (for good reasons) to take away, and the politics of stripping millions of people of legal status will be too awful for a Republican Party facing an increasingly Hispanic electorate to contemplate. (Especially if you give President Hillary a term or two in office first.)
But even setting aside the political ambitions here, telling people “sweeping policy change X can happen at the president’s discretion, and if you don’t like you should elect a different president” is pretty much the essence of presidential caesarism. (Which again, to be fair, Posner pretty consistently supports.) I’m arguing that this proposal would amount to a presidential takeover of immigration policy, an executive power grab par excellence; the fact that a future executive could undo doesn’t disprove this argument, it follows naturally from the premise.
4) But lots of areas of public policy already operate this way. You argued that there’s a foreign/domestic policy distinction, but come on: Presidents have lots of discretion on domestic issues too.
But again, there’s a difference between executive discretion and an effective rewrite of the laws. Posner’s own examples of alleged precedents for what Obama wants to do are helpful in illustrating the point. He notes, for instance, that the IRS “doesn’t audit paupers very often,” even though tax law technically applies to rich and poor alike. But that doesn’t mean that President Marco Rubio would be justified in using his executive discretion to announce that, because a divided Congress won’t agree to pass his pro-family tax reform, he’s directing the IRS to issue permits to all families making less than $150,000 formally exempting them from income and payroll taxes. Or again, Posner points out that the DEA “focuses on criminal syndicates rather than ordinary drug users, although both violate federal law.” But that’s rather different from a scenario in which President Rand Paul announces that, because Congress won’t reform sentencing as he desires, he’s issuing permits to domestic cocaine and heroin dealers exempting them from drug laws and ordering the DEA to only arrest non-citizen smugglers and release any American involved in cartel operations. (Or, to borrow my friend Reihan Salam’s rather more striking examples, a scenario in which a President Paul issued permits to a narrower set of favored constituents — say, Kentucky meth dealers who had donated to his presidential campaign.)
Again, it’s not that the executive doesn’t have latitude and discretion in legal enforcement. But when that discretion amounts to a de facto rewrite of the law, we’re in rather different territory.
5. Well, different but not uncharted. After all, by your logic Obama already did just that with his earlier executive action on the issue. Why weren’t you howling about caesarism then?
Because, as I tried to argue in the column, this isn’t just a legal issue: It’s a question of legal norms intersecting with political norms, with the latter helping us see when legal creativity on the part of the executive becomes outrageously lawless in effect. So I did, in fact, think that Obama’s first legalization-by-fiat was an abuse of power, but I didn’t “howl” in that case because Obama was still working around the edges of the immigration debate, in terrain where there was some kind of bipartisan overlap (which that power grab erased, N.B.), and wasn’t trying to mostly resolve the larger, more hotly-contested issues in favor of the liberal side of the argument.
But if you go from half a million work permits to five million, you just aren’t working around the edges any more, and a presidential move that’s dubiously-legal when the impact is far smaller deserves considerably less benefit of the doubt at that kind of scale. There isn’t a perfect analogy here, but it’s a little bit like the difference between, say, launching airstrikes without congressional authorization and sending in 50,000 ground troops without going through Congress first: Both actions push the presidency’s powers past their constitutional limits, but the latter would represent a much more serious, dramatic, and dangerous expansion of presidential power than did, say, Obama’s quasi-war in Libya.
6) But there are more expansive domestic policy precedents that you’re ignoring. What about, say, Jimmy Carter’s pardon of the draft dodgers?
Maybe there are more expansive precedents — on this scale, on a domestic issue of this prominence, with this significant a policy impact — that haven’t occurred to me. But Carter’s 1977 pardon of about 100,000 draft evaders, cited by Posner and others, doesn’t fit the bill. That was, of course, a high-profile, hotly-contested decision, made by the executive alone rather than through legislation. But it wasn’t a power grab, because the pardon power is obviously, explicitly inherent to the presidency (it’s right there in the constitution) in a way that the alleged power to rewrite immigration law is not. The pardon power’s expansiveness is a widely-understood feature of our system, and the draft-dodger issue was publicly debated in the 1976 presidential campaign on precisely that understanding; it wasn’t suddenly invented by Carter midway through his presidency after an attempt to pass a law through Congress failed.
Posner’s other example, the White House’s recent climate regulations, is likewise a different sort of thing from what’s being contemplated right now. Those regulations are being implemented under the umbrella of a congressional statute, the Clean Air Act, that clearly grants the executive the power to regulate some pollutants, and the question of whether that statute actually applies in this case is being extensively litigated in the courts. That’s very different from claiming that the president has inherent authority, independent of any statute granting him specific powers in the area, to effectively rewrite immigration law in ways that are unlikely to be successfully contested in the courts. The former is a within-normal-bounds (if unusually sweeping) attempt to use existing statutes to further the executive’s policy objectives; the latter is an implicit denial that the laws really matter, if the president doesn’t particularly like what they have to say.
6) Okay, but you’re still only telling one side of the story. We’re getting unprecedented presidential unilateralism because this president is dealing with unprecedented congressional obstruction on crucial issues.
This is the heart of Posner’s argument, and crucial to Brian Beutler’s TNR response to my column as well. But neither writer really explains what makes any particular issue so crucial that the president gets to set aside his promise to faithfully execute the laws. “If Congress cannot pass any laws because of gridlock,” Posner suggests, “then it has violated its obligations under the Constitution, and accordingly the president has the right to use his enforcement powers to implement policies that serve the public interest.” But given the definition of “enforcement powers” being proposed here, this is extraordinarily open-ended: It could apply in the cases I cited above, under presidents Rubio or Paul, and indeed could apply to an issue, in any scenario where a president faces a hostile Congress that he cannot bend to his will. (Imagine George W. Bush directing the IRS to add private accounts to Social Security after Congressional Democrats rejected entitlement reform, or Bill Clinton directing the IRS to create tax credits for the uninsured after Hillarycare died on the Hill, or …) If we are a republic of laws, in which separation of powers matters, Congress cannot be said to have an “obligation” to legislate on any issue the White House happens to deem important, or — to borrow from the president’s rhetoric — any issue where a sufficient number of powerful interest groups are aligned on the White House’s side; that would afford the executive branch an extraordinary power to dictate policy and legislative outcomes.
I will concede, certainly, that there are scenarios where congressional inaction obligates some presidential creativity, and that a House as dysfunctional as this one might create more such scenarios than usual. (Which is why, again, I haven’t written angry columns every time — and there have been many — this president has made dubiously-constitutional moves.) And I will concede, as well, that certain crisis-level situations might necessitate more extraordinary moves. (See Constitution, suicide pact, etc.) Posner invokes “the costly and ridiculous near-failure to raise the debt limit in past years,” which isn’t a terrible example: Had Congress actually failed to raise the debt limit, it would have been derelict in its duties, and the White House probably would have been justified in pushing the envelope significantly to deal with whatever economic fallout ensued.
But immigration reform is simply not that kind of issue. We’ve had millions of people here illegally for decades; we will probably have millions of people here illegally a decade hence even if Congress decides to pass major immigration legislation tomorrow; and there is no emergency situation requiring legalization as the obvious, there-is-no-alternative response. (The only ongoing emergency, the child migrant crisis, is one that de facto legalization probably helped cause.) Immigration is a sufficiently non-urgent issue, in fact, that it wasn’t a high priority for Democrats during the four years that they controlled both houses of Congress. What’s changed since then, apart from political calculations? What is the evidence that the House is violating some alleged constitutional obligation by failing to act on this issue right now? No such evidence exists, and no such obligation exists: All we’re dealing with here is normal political disagreement, and a president who wants to wave his pen and make it disappear.
7. But you don’t want comprehensive immigration reform to pass legislatively either! So this is just a partisan argument: you’re only crying “caesarism” because you disagree with the president on the policy.
This is basically Beutler’s trump card, but it isn’t an argument at all. No, I didn’t support the Rubio-Schumer bill, or most recent iterations on “comprehensive” reform. I also haven’t supported any number of policies pursued under this administration, including many that have been implemented through the bureaucracy rather than through Congress directly. But in exactly none of those cases did I make this kind of argument about what the president was doing, because in those cases the argument either didn’t apply, or else applied much more weakly than it would to what’s being contemplated here.
There are, yes, people on the right who are inclined to think that this president has been violating basic norms of constitutional government since the earliest months of his administration. I am not and have never been one of them, and I would decidedly prefer not to have to join their ranks at this late date.
But when the facts change, my views change. And the facts are changing: The president is proposing doing something that he himself denied he had the authority to do just three short years ago, using justifications that I am quite certain few liberals and moderates would have swallowed had they been advanced by a different president, on a different issue, in a different time.
So answer me on those facts, or don’t answer me at all.