Whenever Washington gets gridlocked, we pay a lot of attention to procedure, and there’s hope that some kind of rule reform (on filibusters, campaign financing, etc.) will lead to the kind of bold action that enthralls the press and inspires the public. There’s also agonizing over questions we hoped were settled a long time ago, and one of them is: What can the president do without the permission of Congress?
This week, President Barack Obama is expected to issue an executive order that would, for the time being, shield up to 5 million undocumented immigrants from deportation. As the Washington Post’s Chris Cilezza writes, “Republicans have made it clear that if Obama goes forward, it would be the equivalent of giving the middle finger to their incoming majority.” Obama’s action, and the GOP’s response, could kill bipartisan legislation for the next two years, further undermine the Affordable Care Act, and dominate the 2016 presidential election whether the candidates like it or not.
If Obama does not issue the executive order, all these things could still happen.
Inaction on immigration reform is the most glaring failure of the current session of Congress. After the Republicans lost the 2012 presidential election, there was a brief consensus that the party needed to support immigration reform to improve its popularity with Hispanic voters. But no one could figure out what would replace the specter of undesirables sneaking across the border in campaign commercials, so the GOP-controlled House refused to act on the issue. (And this was before ISIS and Ebola.) That brings us to Obama’s decision to bypass Congress and issue an executive order that would sharply reduce deportations. (The administration has deported 2.1 million people since Obama took office, reaching an annual high of 438,421 in 2013, but the number has dropped significantly this year, as authorities narrow their focus to criminals and national-security threats.)
Among the supporters of an executive order is the U.S. Conference of Catholic Bishops, with Seattle Auxiliary Bishop Eusebio Elizondo decrying the current “broken and immoral system” and saying, “it would be derelict not to support administrative actions…which would provide immigrants and their families legal protection.”
But every thrown stone has ripples in the small pond of Washington, D.C. The Washington Post’s Lori Montgomery reports that Republicans are furious at Obama for trying to work around them on immigration reform (and climate change), and are in no mood to cooperate on other issues: “instead of starting work on tax legislation that would be politically and substantively challenging under the best circumstances, Republicans are threatening another bitter partisan showdown that risks shutting down the government.”
Post columnist E.J. Dionne rolls his eyes at this supposed backlash: “House Speaker John Boehner has said that President Obama would ‘poison the well’ for legislative action on immigration reform by unilaterally issuing executive orders. But how can you poison a well that has already been filled with partisan cyanide?”
Vox’s Matthew Yglesias focuses on the political imperative behind Obama’s action: “Doing something substantial to help otherwise law-abiding unauthorized migrants working in the United States and their families is seen not just as politically viable but as necessary for 2016 because it gives Latinos a reason to turn out and vote.” He notes, “If a Republican wins the White House in 2016, there will be no checks and balances to stop him from ordering the deportation of millions of immigrants granted relief by Obama.”
Yglesias is being surprisingly (Gruberly?) candid here. Opponents of the executive order are sure to condemn it as a cynical way to shape the 2016 electorate to the Democrats’ liking, after this year’s disastrous midterm election. But I’m not sure it would help the Democrats as much as they hope. My guess is that the Republican nominee in 2016 will sorrowfully accept the “amnesty” given to unauthorized migrants as a fait accompli, akin to same-sex marriage. A Republican president isn’t going to tear up hundreds of thousands of work visas—or marriage licenses—even if he condemns the executive overreach or judicial rulings that produced them.
The more suspenseful question is whether a Republican president will take advantage of Obama’s actions—his normalization, perhaps, of sweeping executive orders—to make major policy changes on environmental regulations, the surveillance powers of the federal government, etc., without the input of Congress. (This would make a Democratic takeover of the House in 2018, perhaps possible only if there’s a Republican president to run against, rather less valuable.)
The National Review’s Charles C.W. Cooke explores this possibility: “‘I can’t wait until President Cruz decides to reform the tax code on his own,’ we muse darkly. ‘And imagine what will happen in 2017,’ we add, ‘when a Republican executive tires of the stasis and simply refuses to enforce Obamacare.’”
But Cooke isn’t heartened by this prospect:
Passionate as I am about day-to-day politics, that a president of whom I approve might one day be able to push through my coveted agenda with little to no resistance is no consolation at all. Nor am I inspired by the prospect of my preferred leader’s being able to disregard the law if he happens to disagree with it. Instead, I am keenly aware that the rule of law and my own security are inextricably bound together. As George Orwell might have said, a strongman that one holds in high regard is still a strongman.
The New York Times’s Ross Douthat also winces at the idea that the GOP can later benefit from a stronger presidency:
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.
This is a worrisome scenario, but I’m not sure immigration law is a likely tipping point. Presidents have always had discretion on how vigorously to take action against unauthorized migrants, and Republican presidents Ronald Reagan and George H.W. Bush authorized “amnesty” to family members of legal residents. It’s unclear how the White House’s latitude could be restricted here. Should the judicial branch dictate how many people are deported each year? Should Congress enact deportation quotas each year, and, if so, how would employers react to that?
For now, the biggest danger for the Democrats is that an executive order on immigration will get balled up with other actions by Obama (such as leaning on the FCC to codify “net neutrality,” a position now popular with voters in both parties but not Republican leaders) in a unified theory of power-grabbing. The Affordable Care Act (“Obamacare”) is very much part of this theme, thanks to economist Jonathan Gruber’s impolitic comments on how a “lack of transparency” was instrumental in the passage of the law. Republicans have been calling the ACA illegitimate ever since Obama kept lobbying for the bill in defiance of the voters of Massachusetts, who elected Scott Brown to the U.S. Senate in January 2010. They will have no problem connecting immigration and health care as examples of Obama violating the norms of American government, and this debate will continue through the 2016 election.