President Obama is rewriting immigration law in the guise of exercising “prosecutorial discretion.” In other words, he’s going to ask federal agencies not to enforce the laws on the books and hand work permits to millions of illegal immigrants.
When conservatives and moderates criticize this unilateralism, as I did earlier this week, we tend to get three responses from liberals. None of them make Obama’s plan sound any better.
The first is that if Republicans dislike this step so much, they should pass their own bill through Congress. Jacob Weisberg takes this line in Slate. But just passing any old immigration bill would not stay the president’s hand. If Congress passed the immigration-enforcement bill the House voted for in 2005, Obama would almost certainly veto it and proceed with his plans.
What these critics are saying is that Republicans should keep Obama from acting on his own by giving him exactly what he wants. This is, of course, Obama’s own argument as well. It’s an argument that has nothing to say to people who think that presidential rewrites of the law, and threats thereof, have no place in our constitutional order — which is to say that it’s not a good-faith response.
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The second response is that the president has to act because the system is broken. Nathan Pippenger, writing at Democracy’s blog, argues that the president is striking a mighty blow against “the normalization of dysfunction.” This is very different, he says, from saying that the president should act whenever he doesn’t get his way. But he never explains the alleged difference. The closest he comes is to complain that House Republicans haven’t held a vote on the Senate immigration bill and that they haven’t followed through on promises to pass one of their own.
I tend to think that the House’s failure to pass a deeply flawed Senate bill is a sign of the political system’s health, even if the status quo isn’t anybody’s ideal. But let’s assume for the sake of argument that the bill is worth enacting. The House’s failure to go along doesn’t give the president a license to do what he pleases. Pippenger suggests that the presence of millions of illegal immigrants in our country may constitute a “crisis,” but doesn’t fully endorse the idea.
He was right to stop short. Illegal immigrants and the rest of us have managed to put up with this — again, admittedly less-than-ideal — situation for years. The president himself decided that action could wait until after the election. There’s no justification for dispensing with the normal mandate that legislation is required for major policy changes.
The alternative isn’t for the president to “surrender.” It’s for him to accept the limits of his constitutional authority. Which gives us the answer to Ed Kilgore’s question, in the Washington Monthly, of how long the president should wait: forever, or until he has real legislative authorization, whichever comes first.
The third response, by far the most popular in recent days among Internet liberals, is that there’s no problem here because Presidents Ronald Reagan and George H.W. Bush issued their own unilateral amnesties. Because of those amnesties, my statement that no previous president had ever considered doing what Obama is doing was called “misleading” over at Andrew Sullivan’s blog.
Mark Krikorian, who runs an immigration-restrictionist research group, has made short work of this argument. The Republicans-did-it-too crowd is exaggerating how big those earlier executive amnesties were. They were far smaller than what Obama is considering today. More important, these weren’t cases where Congress had pointedly refused to enact an amnesty. They were the “tying up of loose ends” from a congressionally enacted amnesty, and after they were done Congress passed another law trying to prevent presidents from issuing further amnesties on their own.
What Obama is talking about is indeed a break with the country’s constitutional tradition. You don’t need to take my word for it. “That’s not how our democracy works. That’s not how our Constitution is written.” Obama used those words to explain why he wasn’t going to go it alone on immigration back in 2011.
It’s not the Constitution that has since changed.
Ramesh Ponnuru, a Bloomberg View columnist, is a senior editor for National Review, where he has covered national politics for 18 years, a visiting fellow at the American Enterprise Institute and a resident fellow at the University of Chicago’s Institute of Politics.
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