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Obama, Immigration, and Abiding by Election Results

Obama, Immigration, and Abiding by Election Results

By Sean Trende - November 22, 2014

I tend to shy away from policy discussions, but the debate over President Obama’s executive order on immigration touches on many of the historical and legal issues I often write about.  I think Ezra Klein offers a reasonably fair summary of the arguments for and against the action. Toward the end, Klein tries to synthesize these arguments into a position where, in his words, he agrees with the president perhaps three days out of the week and disagrees on the other four.

It’s not a bad way of looking at the issue, as I don’t think it’s as black-and-white as its supporters and detractors suggest.  At the same time, going through Klein’s arguments for and against the action, I think he should probably allot an additional day of the week to be concerned.

It’s worth noting up front (as I’ve done before) that I tend to agree with Klein on the merits of the overarching policy motivation at work.  We’ve created a mess, in large part through many years of passive neglect of illegal immigration by multiple administrations of both parties, to the point where many of the immigrants involved have been in this country for decades now.  While I’m concerned about rewarding those who effectively cheated (and the message that sends to people like my grandmother and her family, who played by the rules to the point of leaving a tubercular brother behind in Italy), I’m not sure the magnitude of the original sin is proportional to the punishment of sending them “back” at this point. In an odd way, the order makes for a decent compromise: Those who have been here the longest don’t get sent back, but the promise of citizenship and even of true legal status remains murky.

So what’s at issue to me is whether the means are justified.  Let’s walk through Klein’s concluding analysis.  He writes:

“President Obama appears to have the legal authority to make this move. And I’m unconvinced by the cries that he must tailor his agenda because of an election where he wasn't even on the ballot. Where were these voices when Republicans responded to the 2008 election with a relentless campaign of obstruction against the stimulus, the Affordable Care Act, and Dodd-Frank? Where were they after the 2012 election? The judgment of the electorate cannot be binding on one party but not the other. On this, the recent political norm is clear: parties are free to pursue their agendas even after poor showings in national elections.”

I don’t think that the argument -- at least not the good argument -- is that Obama has to bend to GOP will because Republicans had a second outstanding midterm election. The real issue here is more nuanced. Jay Cost and I touched on this in one of my earliest pieces at RealClearPolitics:

“There’s a second complication with ‘mandates.’ Obama might have a mandate, but can’t Boehner, Cantor, and each House Republican claim one for themselves? They can each say, ‘I won,’ as well -- which means that they were ‘empowered’ by ‘the people’ in their constituencies to do a certain job. So, this actually makes the concept of a mandate more difficult to implement -- for it implies that there can be competing mandates. This is par for the course in a constitutional system that divides power across multiple branches.”

Stipulating that mandates exist (I’m skeptical, but let’s just stipulate), every victorious politician gets one. Republicans didn’t have an obligation to support the stimulus (although all of them voted for stimulus alternatives) because most of them had run, and won, on the idea of a smaller federal government. Most had run on opposition to the concept of what became Obamacare (and they certainly did so this year). They had no greater duty to work with President Obama than Democrats had to work with President Bush on partial private accounts for Social Security or making the Bush tax cuts permanent (even though he had run, and won, on them twice). At the same time, Obama has twice run, and won, on his changes to the immigration system. He has no particular duty to support Republican proposals on immigration reform.

What makes his executive action so questionable is that he is taking an extraordinary step, well beyond any mandate he can reasonably claim, without any clear indicia of public support. The fact that he disclaimed having such powers through 2012, and postponed this action until after the 2014 election precisely to avoid any political backlash, illustrates the problem. 

When executives have acted at the limits of their powers in the past, they have typically done so in emergencies and in response to substantial victories that at least gave their actions an air of tacit approval. FDR’s claims to be able to declare a banking holiday were pretty thin, grounded in an act that granted the president powers to regulate trade during World War I. But he’d just defeated an incumbent president by nearly 20 points on a promise to get the economy moving again. It wasn’t ridiculous to think that he was empowered to take some extraordinary steps.

Similarly, when Reagan and Bush made their (more limited) moves on immigration, they did so on the heels of a massive, bipartisan immigration reform bill.  Klein notes that Democrats did not go to war over those acts, but that in many ways only proves the point: The moves weren’t overwhelmingly controversial. A better analogy might be President George H.W. Bush’s requests for a capital gains tax cut in response to the recession, which Democrats repeatedly rebuffed.  Had Bush been re-elected in 1992, then directed the IRS not to collect capital gains past 15 percent, and issued permits to upscale Americans to avoid those taxes, I suspect Democrats would have been apoplectic, with good cause, especially if the president had disclaimed the ability to undertake those actions during his campaign.

That is what this really comes down to, at least for me: A substantial violation of norms surrounding executive authority.  This isn’t unprecedented (Klein’s examples of George W. Bush’s actions on IRS actions and climate change are illustrative).  But it’s a major step. Decreasing the number of audits of estate tax bills is one thing; declaring that you won’t collect the estate tax and issuing a blanket pardon to estate tax violators is another.

Moreover -- this is important -- this isn’t just about prosecutorial discretion, where I think the president has a fairly solid argument.  This is effective legalization of a group through issuance of work permits, demanding payment of fines, and so forth. It is de facto enactment of a large portion of a substantial, controversial piece of legislation through executive action.  Worse, the second-most commonly proffered justification -- the clear refusal of a duly elected branch of government to approve this action -- is the strongest reason for not acting.

Contrary to some of the louder reactions, our Republic can withstand this breach. The real problem is that our history suggests that once these norms are violated, Humpty Dumpty can’t be put back together again. We see this with the sorry state of our judicial nomination process. What probably started with an arguably justified filibuster by Republicans and conservative Democrats of Abe Fortas’ nomination as chief justice of the Supreme Court (he really did have some ethical issues), escalated to the defeat of Robert Bork on ideological grounds and a blockade by Democrats of many of George H.W. Bush’s nominees in the final years of his term, to a more extensive blockade of many of Bill Clinton’s nominees for most of his term by Republicans, to the filibuster of many of George W. Bush’s Court of Appeals nominees by Democrats, to Republican threats of dismantling the judicial filibuster in response, to Republican filibusters of Obama’s appellate and District Court nominations, to the actual dismantling of the judicial filibuster by Democrats.

Both parties played a role in these latter developments, and the Bush presidency clearly saw its fair share of broken norms (using the threat of budget reconciliation to pass tax cuts; the midterm firings of U.S. attorneys). But this proves nothing.  The point is that once you start down a road, you don’t go back.  No one who voted to filibuster Fortas would have agreed that the endgame would be routine filibustering of District Court nominations and the beginning of the end of the filibuster, but that’s exactly what happened. No one really thought that the creation of reconciliation would enable the enactment of $1.3 trillion in tax cuts.  And so forth.

Similarly, the supposed firewalls on the expansion of this power -- the president has far-reaching authority over foreign policy and immigration -- are built on sand. Any number of policies (trade deals, corporate tax rates, commercial regulations) can be justified as affecting foreign policy, and prosecutorial discretion isn’t limited to immigration.  All of these previous acts have theoretical firewalls (the Democrats’ dismantling of the judicial filibuster has a carve-out for Supreme Court nominees), but they’ve all fallen or are expected to fall.

So, like Klein, I do understand where the president is coming from, and I do think he probably has the legal authority to do a substantial portion of what he is doing. But we’d all be better off if presidents avoided expanding that authority any further than it has been.

Sean Trende is senior elections analyst for RealClearPolitics. He is a co-author of the 2014 Almanac of American Politics and author of The Lost Majority. He can be reached at strende@realclearpolitics.com. Follow him on Twitter @SeanTrende.

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