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.
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.
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.