Why conservatives should applaud Obama’s decision to ignore the law

Byline: | Category: 2012, Government, Regulations, Taxes & Spending | Posted at: Sunday, 17 June 2012

Republicans upset over President Obama’s decision to ignore the illegal immigration of hundreds of thousands of young foreigners should be overjoyed by the precedent the President sets.  Patrik Jonsson of the Christian Science Monitor asserts that by ignoring Congress, Obama is “reshaping the power of the presidency.”  Actually, he is just re-asserting a power the presidency had long exercised until relatively recent history.  While I happen to believe that the United States would be better off with greatly expanded legal immigration opportunities, even those conservatives of a more xenophobic persuasion should find plenty to like about Obama’s Friday announcement. 

The decision to cease enforcing particular provisions of immigration law was not, as some commentors have asserted, a presidential usurpation of legislative power.  The Executive branch is not making law, as was the case when it attempted to declare carbon dioxide to be a pollutant in violation of the powers granted to the EPA by Congress.  Instead, this is a case where the President disagrees with a law on the books, and thus unilaterally decides not to carry it out. 

We have a long history of a passive aggressive presidency.  Thomas Jefferson refused to spend $50,000 to buy gunboats to patrol the Mississippi River and America’s border with the French colony on its western bank when his purchase of Louisiana in 1803 made moot that border.  I’m sure there was some Congressman in whose district those boats were to be made who objected to this first use of presidential impoundment power.  Warren Harding and Calvin Coolidge were both famously cool toward the idea of enforcing the Volstead Act outlawing alcohol.  Grover Cleveland didn’t fill numerous appointments, believing that government payrolls had grown  bloated through patronage and spoils.

Since the very beginning of our Nation’s founding, there has been (by design) a healthy tension between the Legislative branch, which writes laws, and the Executive Branch, which executes those laws.  Laws were only de facto valid when they were both on the books and willingly enforced.  As every law is a limit upon the people, this created a very high barrier to restrictions on individual rights.  In modern parlance we would say that it is a “feature, not a flaw,” as the tension between the branches reinforces the desired ideal that the default position of the federal government is inaction.  

If President Obama’s frustration over a “do nothing” Congress prompts him to respond with a “do nothing” government, then I’m all for it.  Imagine the good that could be done if a Republican president used Obama’s precedent:   By not filling tens of thousands of authorized positions, he could shrink the size of government.  By refusing to enforce some environmental regulations, he could remove barriers to economic growth and greater employment.  By canceling unnecessary weapon systems, he could remove the influence of earmarks from the defense budget.

Instead of complaining about Obama’s decision, conservatives should applaud anything which increases government inaction.  Meanwhile Democrats who applaud the President’s decision for the short-term advantage it might give them, should be very wary of handing a precedential hammer to a future Republican president who could use it to smash big government.

UPDATE:

Thanks for the links from Glenn, Rand, and Allah.  And thanks all for the comments.  I expected this post to produce some complaints.  Let me address some of them as they generally boil down to a few general ideas:

Liberals don’t respect precedent when it goes against them.  That’s a matter of opinion, and somewhat irrelevant.  However, if I were offering advice to the Romney campaign (I’m on active duty so I can’t do that) I would tell them to respond to this presidential move by listing the laws that he intends to ignore as soon as he becomes president.  Commenter Smart Dude says: “Call this ‘The Obama Rule’ and shove this right in the[ir] face. . . There have to be a thousand  insane regulations that need not to be enforced. Start with the War on Coal and the shutting down of irrigation water to Western agriculture.”  I’m sure that Romney could score many political points with this approach, particularly in the realms of spending and environmental restrictions.  Additionally, there is much entertainment value in this approach, as American voters would have the fun of watching David Axelrod contort himself explaining why ignoring one set of laws is good while ignoring another set of laws is wrong. 

Conservatives believe in the rule of law; and this measure violates that.  This is why I hate labels.  There are those who believe in a strong legal system that punishes miscreants; they are often called “conservative.”  There are those who believe in a legally enforeable system that regulates morality and they are often called “conservative.”  There are those who believe that government should allow individuals maximum latitude and that individuals should rise and fall on the consequences of their actions; they too are often called “conservatives.”  I could offer a dozen other depictions of conservative beliefs, half of which would conflict with the other half.   Instead, I dispense with those labels and use “more individualism” versus “more centralization” when it comes to who gets to exercise power.  So while I believe in “law and order,” I am always cognizant of the fact that law is not an established fact but a transitory event.  Free men should always question whether or not a law still makes sense.  And if one determines that it does not, it is his duty to violate it.  (Believe me, I’ve lived a half-dozen years in a country where people did not believe that way, and 70 years later, they’re still confronting the ugliness of their inaction.)  Does it still make sense to prohibit employment and education opportunities to American residents who, through no fault of their own, came to the States as minors and have been raised as Americans?  I don’t think so.  Similary, does it make sense to prohibit the reconstruction of a reservoir that provides literal sustenance to a community because a bird is threatened?  Again, I don’t think so.  Some laws are so intuitively stupid that they deserve breaking.  And guess what:  if you disagree, you get a vote next November and every fourth November after that.

It is an unconstitutional usurpation of legislative authority.  I’ve mentioned several historical examples of why presidents have ignored the law.  I don’t think that any of those were considered to be unconstitutional at the time.  (Admittedly, the end of impoundment is a pet peeve of mine; to understand why, you only have to have spent one September as a government employee.)  To one degree or another, executives of any organization have to prioritize what it is that their organization will do.  My background is the army.  If a company commander were to comply with every directive, order, regulation, and mandate that came before him, he would have no time remaining to actually train his soldiers.  His soldiers’ time instead would be consumed by diversity training, dental appointments, and half-day Thursdays.  Every new “good idea” seemingly requires a four-hour annual block of instruction.  The military is no different from society at large.  Complying with the myriad rules (and often contradictory rules, at that) exhausts the ability of an executive to execute anything meaningful.  Hence, the job of the modern executive is to determine which rules one can “get away with” violating on the way to actually accomplishing something.  It shouldn’t be that way, but it is.  This precedent recognizes that fact.

Thanks to all commenters, and keep the comments coming in.

MORE:

Jim Delong pens this:  “Broad illegality is also useful to maximize bureaucratic discretion. Make everything illegal, and then pick and choose what to enforce.”  That’s a horrific vision of the future (present?) wherein everything is subject to the whims of whomever is elected.  Thus, it’s a valid criticism of what I have written.  Although, more precisely, it’s an indictment of the legislative branch, although not without the complicity of the executive.  If we are there, then, well, God help us. 

BTW, Jim Delong has a new book out.  I bought it and like what I’ve found so far.

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70 Responses to “Why conservatives should applaud Obama’s decision to ignore the law”

  1. ertdfg Says:

    So we should support Obama’s power grabs and hope he turns the Presidency into a Dictatorial seat with exceptionally increased power; because we can forcibly do some good overriding the will of the people when we have that power?

    And you don’t see this leading to a problematic situation? You trust that OUR dictator following Obama won’t abuse the new exceptional power handed to him and we can trust our new Tyrant?

    Last I checked power corrupts; which is why we have a system of laws, rules, and checks & balances to avoid this situation. Without proof that we’ve remedied the lust for power in mankind I’m not convinced this is a good path, or one that should be encouraged.

    If we had a completely different type of people than the humans we have now, maybe… but then maybe Communism would work with those hypothetical beings too. Hypothetically it would be very efficient and compassionate; if it weren’t tried by humans.

  2. BillM Says:

    If you’re not a liberal you’re missing you’re calling. Yes, you don’t like labels, wonder why. You examples miss the mark and are irrelevant to this situation. You used pretzel logic and tied yourself in knots. Conservatives won’t go there, thanks for the offer.

  3. BoB Says:

    I don’t think you understand the Rule of Law comment if the last update is a valid criticism.

    The point of the Rule of Law is to protect people from the whims of those in power. The idea behind it is that people can’t just “violate the law” at will without consequence – INCLUDING those in power. Thus if you disagree with the law, your duty is not to violate it, but instead to CHANGE it. That is the point of the Rule of Law.

    By saying that the Rule of Law is just a way for those in power to keep it is to totally misunderstand its use and function.

    And I don’t know you from Adam, so I have no idea where you lived, but my guess is that, no, they didn’t actually follow the Rule of Law, but instead used law to keep the populace at large from gaining any sort of power. This is exactly what the Rule of Law is designed to protect AGAINST. This describes precisely that last update – where everything not mandated is illegal, and you have to curry favor with the local enforcer to get anything done. This is how most socialist systems end up working in practice.

    This is not the Rule of Law, it’s the Rule of the Bureaucrat. That’s very different.

    In the Rule of Law, the Constitution expressly lays out whose has what responsibility, and expressly states what the government is allowed to do.

    Under the Rule of Obama, whatever he says goes. He wants a law, he creates regulation. He doesn’t want a law, he refuses to enforce it.

    That’s NOT Constitutional, that’s NOT the Rule of Law, and that’s NOT what ANY of the Founding Fathers had in mind, and it’s most certainly, definitely NOT an example for ANYONE, much less anyone calling themselves “conservative” to follow.

  4. Brian G. Says:

    No mention of the criminal Bush and all the laws he broke and how should be given a fair trial, summarily convicted, and sent to The Hague for life. Bush is the biggest criminal in history and Romneynwill be no different if America decides to blame the nearest black man like it always does this November.

  5. Takingballgoinghome Says:

    Well, I am a potential legal immigrant in the US on visa doing residency training. I’m 12 months away from making an attending physician level income. The US cares more about illegals than those of us coming in legally, jumping through hoops, ponying up the fees, and waiting for legal status. I’m taking my salary (and tax money) and going home.

    Thanks for the slap in the face Mr Krumm. Of course the law doesn’t make sense if you don’t give a lick about those of us trying to come legally.

  6. Lavaux Says:

    The Obama Rule is a double-edged sword, but the downside consequences of using it accrue entirely to the citizens. First, enduring legal uncertainty translates into permanent business and investment risk diverting capital from long-term allocations to short-term ones. Do I invest a billion dollars in building a coal-fired power plant if the next Democrat president will shut me down in four to eight years? Nope, too risky, so I’ll invest in South American commodity futures because those banana republics are more reliable than ours. Second, the patronage networks that will grow around non-enforcement will take political corruption to a whole new level, and they’ll seek to expand their clientèle beyond all reason. Illegals under 30 will expand to Illegals under 60 to everyone under 90 who wants to come to America. Finally, those of us who deem constitutional government the only legitimate and lawful kind will become ungovernable, seditious and even rebellious, particularly when indulged by lesser sovereigns who see their own survival threatened by D.C. All in all, the Obama Rule is very bad juju for America precisely because it is so useful to her political classes.

  7. Becky Says:

    It is an interesting point that you are making and I think it is good advice to Romney.

    However, I do have a bone to pick, and I intend to pick it because I think it is an important one.

    You said, “Does it still make sense to prohibit employment and education opportunities to American residents who, through no fault of their own, came to the States as minors and have been raised as Americans?”

    IF (big if) our borders were sealed, I’d agree with you. But the fact that our borders are not sealed makes that a complex question, not a flippant one.

    The statement brushes past many unpleasant realities to arrive at its feel-good conclusion.

  8. David Jack Smith Says:

    “I would tell them to respond to this presidential move by listing the laws that he intends to ignore as soon as he becomes president.”

    Only if Obama does it first and lists ALL THE OTHER LAWS he intends to ignore. You first Mr President

    Of course, Mr Krumm is being highly disingenuous. He knows that when Obama “ignores” the law and runs an administration of lawlessnes, the massed ranks of the Presstitutes throw a yawn bigger than Katrina.

    Look at the Mau-Mauing of Bush when he LEGALLY and constitutionally removed previous administration lawyers from the Justice Department.

    If Romney tries something like Obama (or even something legal they don’t like) they will spend the time between then and the election trying to ensure he is NOT reelected.

  9. Sophia R Says:

    “While I happen to believe that the United States would be better off with greatly expanded legal immigration opportunities, even those conservatives of a more xenophobic persuasion should find plenty to like about Obama’s Friday announcement.”

    It’s not xenophobic to be opposed to illegal immigration, but support legal immigration. A true xenophobe would be opposed to ALL immigration.

  10. Mark Christian Says:

    I am guessing you did not grow up in a border town like I did? When it comes to education, teachers have to accommodate every child with the result being the total dumbing down of the education process as students who can barely if at all speak English slows down the process of actually teaching. Please don’t fool yourself as to the fact that teachers do not fail these students. Finally, it is not the Federal system that pays for our state public school education, but the state, therefore states like Texas and Arizona are now left with additional funding issues in education and health costs since on any given Monday morning ER rooms in hospitals are jammed with illegals needing basic health care.

  11. JS Says:

    And if one of your family members is killed by an illegal alien, how will you feel then, Mr. Krum?

    You seem to forget that these immigration laws are on the books for a reason. If you don’t like the law, then work to overturn it.

  12. TS Alfabet Says:

    It seems to me, however, that future Congresses could respond to this “passive-aggressive” presidency– a President who refuses to “faithfully execute the laws of these United States”– by passing laws that *prohibit* executive action rather than require positive action. To use the example of illegal immigrants, Congress could pass a law that authorized States to deport any illegals found within their borders and forbid the Federal government/Executive branch from taking any action whatsoever to stop the States from doing so by creating a carve-out exception to the U.S. immigration laws. In this example, Obama would have to violate the law passed in order to get his political benefit (and subject himself to possible impeachment).

    In this same way, Congress could pass all sorts of laws that forbid Executive Branch action. EPA? Congress passes a law that forbids it from exercising any jurisdiction or oversight over the coal, oil or natural gas industries.

    So it is a dangerous game that any President plays in this respect and could wind up with a war between Congress and Executive about how much a Congress can limit the powers of the Executive branch.

  13. Leigh Bjerregaard Says:

    I am tired of totalitarian tyranny with King Obama!Law is force (Bastiat) When we(citizens) don’t like one, we have to do the hard work of convincing our legislators to do the repeal process, or voting out those making these inane laws, and use the ammendment process for the constitution! Why does one man take upon himself this power with the stroke of a pen?I took the Constitution class, and there is separation of powers and Obama is going too far. We have a close friend trying to maintain immigration status and you would not believe what all she has to do to maintain legality over these 4 years!!!There is disgust when those came here illegally get awarded for their bad behavior!!! Hispanics who are playing by the rules and waiting in line are not happy with those who get to break in line, and are rewarded for criminal behavior!He is an opportunist trying to buy the young and hispanic vote!!! Don’t fall for it this time, people, wake up!!!!

  14. LizardLips Says:

    I suppose the question of Obama’s origin is no longer in question, even though his Harvard Law review stated his birth country as Kenya and not Hawaii, a small but significant fact not back-tracked by the administration or anyone else for that matter. This is a country of laws and the president(and he isn’t)has no more right to disregard the law in matters of immigration than I have to break the speeding limit on the way to the grocery store.

  15. Tom H Says:

    Can you explain to me what is the difference between this President and Hugo Chavez? A dictator is a dictator. The Constitution was written to make laws hard to pass through Congress. The “Do-nothing” Congress is working because laws that are not favorable to both sides don’t get passed. A really great concept.

  16. The New Obama Immigration Rule « Says:

    […] Bob Krumm has a good column up about why conservatives should embrace this latest executive rule. Essentially because it puts executive power back into the hands of the president by precedent. […]

  17. Mike Mahoney Says:

    I get the sense that your position boils down to, “Oh, goody! When there is a new Republican president he/she will now have a precedent to do the same.” Shove that!
    The Executive has the same recourse to adress any grievance he has with a law as anyone else; litigation. All other avenues that come to mind are not explicitly one of the enumerated powers. I have had my fill of precedent laden excuses. Relying on precedent has been the way to insidiously amend the constitution. Time to shove precedent this and precedent that down the sewer pipe where it belongs.

  18. politibear Says:

    “Go ahead, Boromir, take the ring and use it for good!”

    No, an unlimited-power, above-the-law presidency will not work. We may not have held our elected and appointed representatives to their responsibilities under the law before, but it is clear we must do so now and going forward because we are beginning to see the disastrous consequences.

  19. America’s First Anarchist President | The idea trend Says:

    […] linked to an interesting perspective, “Why conservatives should applaud Obama’s decision to ignore the law.” The piece expresses the sentiment that “conservatives should applaud anything [that] […]

  20. Rich White Says:

    Ok, I may not be the brightest bulb; however I have looked past the obvious reasons for usurping the laws as we the people created to protect our civil liberties and freedoms to see an underlining issue. It’s this issue I think that truly reflects the mindset of this president and also sheds a dim light on his healthcare reform. By his declaration he intends to “not enforce” the law to those under 30 that has graduated, going to collage or has served in the military. By definition he is saying for those illegals that were born in this county by no fault of their own but is of no use to society to hell with you. Now consider this frame of mind when an appointed medical panel is deciding your fate after say 60?

    I am sure by my use of grammar and typing skills when I say I didn’t graduate high school you won’t be surprised. I did however create a relatively secure financial standing and invest into my community and provide jobs. Fortunately, for me I am an American citizen. I gained what I have by doing the right thing, grit, hard work and determination. This I believe is the bases of the American dream. By ignoring a problem doesn’t make it go away nor does ignoring the law. The only reason the president mentioned the restrictions was an attempt to somewhat mollify the jobless Americans by saying I only want to keep the good ones. Ether way he was wrong, he is ether a law breaker or a bigot… you decide.

    My position on the precedent our government leaders are setting, If you continue to tell someone yellow is actually blue after a while they start believing it, if we continue to look at what this president and those to follow are doing by selectively enforcing the law is just a way to get things done, then my friends we are on a very slipper slope.