Does Obama's Order Set a Precedent for GOP Presidents?

Does Obama's Order Set a Precedent for GOP Presidents?

By Sean Trende - November 24, 2014

On Saturday, I discussed Vox founder Ezra Klein’s analysis of President Obama’s recently announced executive action on immigration.  We basically agree on the motivations for and merits of the policy as policy, and our disagreements on the means of accomplishing the policy relate more to kind than degree.

Yesterday, Vox’s Andrew Prokop argued that a Republican would not be able to use Obama’s move to accomplish much of the Republican agenda. This, I think is misguided. Once a president uses executive authority to implement a major, controversial policy that has been under debate in Congress for almost a decade, especially after his party suffered a substantial midterm rebuke, there is no going back.  It is going to be used repeatedly, in ways that both parties find appalling.

Prokop’s first scenario involves President Rick Perry declaring that there would be a 17 percent flat tax and instructing the Justice Department to defer all prosecutions. He cites former Solicitor General Walter Dellinger’s response: “no president can relieve any one American of a statutory obligation to pay taxes. The next president can come collecting-- and interest and penalties will be accruing until he or she does.”

First, Obama’s action suffers from the same shortcoming. In theory, nothing legal stops a future Republican president from using the list of individuals signed up for work permits as a sort of “illegal immigrant database” to help focus deportations. In fact, the statute of limitations for most audits is three years, with a practical limit of less than that.  Also, just as practical limitations would probably prevent a future GOP president from deporting these individuals, so too would a future Democratic president find it difficult to collect on millions of three-year-old tax bills.

But more importantly, when President Perry walks out the door, he can issue a pardon for everyone who avoided taxes during his presidency. Prokop just sort of breezes past this possibility, asserting that it would provoke a massive public outrage.  But what would an outgoing President Perry care? He would do so after the next presidential election. Moreover, millions of Americans would have enjoyed substantially lower tax rates for either four or eight years.  The incoming president would have a hard time reverting to a 28 percent middle-class tax rate (this assumes that there would be more winners than losers under the executive order).

Prokop responds to concerns that a future Republican administration could selectively enforce environmental laws in a similar manner.  The counters are likewise the same: President Perry could walk out the door with a pardon for Exxon Mobil and all of its officers for fracking violations in Texas all those years.  Since the pardon power is plenary, there would be nothing a future president could do about it.

I’ll agree that there already exist possibilities for avoiding the implications of court rulings on environmental precedents, but I also agree that there exist possibilities for prioritizing the deportations of millions to coincide with a controversial piece of legislation that Congress has blocked. The question was whether that power should be exercised, and to what extent exercising it sets a precedent for the future.

The argument about refusing to enforce Obamacare goes much the same way.  We get to the nut of the disagreement, however, toward the end:

“But when it comes to the oft-discussed ‘norms’ of politics, it will be extremely hard for future Republican presidents to rhetorically cite Obama's immigration actions as a precedent, when so many in the party have denounced it as a massive and tyrannical overreach. The president needs to present his actions to the country as constitutional and responsible plans to better the country, not as unconstitutional and irresponsible efforts at payback. A lot of partisan acrobatics tend to take place over executive power issues, but this would be an especially bizarre-looking contortion.”

This just isn’t right.  Most Democrats were apoplectic over the so-called “nuclear option” to end the judicial filibuster, but somehow convinced themselves that Republican use of the filibuster was different enough to warrant the use of the device. Likewise, Republicans who complained about the use of the filibuster for Court of Appeals appointments didn’t think twice when they had the opportunity to use it. Democrats were apoplectic over liberalized use of signing statements by President Bush, yet President Obama often uses the same device.

To make it a bit clearer: Litigants often fight about the creation of precedent, and it is somewhat unseemly to argue one way in one court while simultaneously arguing a different way in a different court. But once you’ve lost the argument, you’ve lost the argument. The precedent is there, and it applies to all parties equally. 

President Obama is likely to win this argument on legal grounds.  Once he does, there will be nothing to stop a future president from using the precedent for his benefit. There’s simply no unringing this bell, and we’re all likely to regret its having been rung in the near future.

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 Follow him on Twitter @SeanTrende.

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