Douthat's first resort is to the slippery slope, the idea that if the President is willing to shield some groups from deportation in a manner consistent with his constitutional authority and existing law, he could exempt pretty much every person unlawfully in the U.S. from being subject to deportation. He fantasizes,
So the president could “temporarily” legalize 99.9 percent of illegal immigrants and direct the Border Patrol to hand out work visas to every subsequent border crosser, so long as a few thousand aliens were deported for felonies every year.Even if we assume that to be the case, as Douthat's fantasy has no chance of actually becoming reality, it makes for a weak argument against the exercise of executive prerogative. If anything, though, Douthat's hyperbolic scare tactics reveal the weakness of the Republican position. Perhaps it is only in the face of such a fantasy scenario that House Republicans could be inspired to do their job and actually pass legislation.
Douthat makes an extraordinarily weak attempt to distinguish the President's proposal from past executive actions, revealing his essential ignorance of the facts.
In past cases, presidents used the powers he’s invoking to grant work permits to modest, clearly defined populations facing some obvious impediment (war, persecution, natural disaster) to returning home.Obviously, the amnesty that Bush and Reagan granted to the wives and children of prior beneficiaries of legislative amnesty do not even slightly resemble what Douthat describes. Douthat also suggests that the number of potential beneficiaries somehow makes the Obama proposal different from what has come before. However, what the numbers truly reflect is the extent to which Congress has neglected this issue -- immigration reform was supposed to be a priority for George W. Bush, but he was never able to get a bill past his own party. As the previously linked article indicates,
"Bush Sr. went big at the time. He protected about 40 percent of the unauthorized population. Back then that was up to 1.5 million. Today that would be about 5 million."The same article quotes a former Republican aide to then-Senator Alan Simpson that a difference at that time was that Congress indicated that it was going to pass legislation addressing the issue. That's really a distinction without a difference. Nothing is stopping Congress from passing immigration reform legislation, or a narrowly tailored bill directly addressing the issues on which Obama has proposed executive orders. Instead they talk about trying to tie anti-immigration provisions onto "must pass" legislation, potentially triggering a government shut-down. A mature Congress would debate and legislate. We don't have a mature Congress.
From there, it's back to the slippery slope. A President, Douthat argues, could "rewrite" vast areas of public policy through executive order. Again, Douthat ignores the fact that executive orders must be consistent with the law, and thus that Congress has an easy and obvious remedy to overreach -- namely, doing its job. Douthat adds one of his near-inevitable whinges about how Democrats are supposedly hypocritical,
No liberal has persuasively explained how, after spending the last Republican administration complaining about presidential “signing statements,” it makes sense for the left to begin applying Cheneyite theories of executive power on domestic policy debates.Perhaps Douthat spent years complaining about executive overreach by Bush and Cheney; I can't say that I've followed him closely enough to know, and can say that I don't care enough about his past writings to try to find out. I could point out the obvious, that executive orders are not the same thing as signing statements. A signing statement declares, in effect, "I don't think that this law (or some provision of this law) is constitutional, so I won't be bound by it". Congress can't do much about a signing statement -- it has already legislated on the issue, so passing another bill saying "We really mean it" isn't going to have an impact.
As Douthat should know, an executive order must be consistent with federal law. With an executive order, Congress is free to express its will, and nothing is stopping Congress from passing an immigration law addressing these issues. A better analogy would be to the objections raised to the stack of executive orders that George W. Bush signed on his way out of the White House, but perhaps Douthat doesn't know that history -- or perhaps he doesn't want to allude to facts that betray how pathetic his argument truly is.
It's also interesting that Douthat floats from accusing "liberals" of being hypocrites to relying on a poll that documents that most Democrats oppose unilateral action.
According to the latest IBD/TIPP poll, 73% of the public say Obama should work with Congress on reforms. Just 22% say he should "sidestep Congress and act on his own using executive orders" — something the president has repeatedly pledged to do.Were Douthat more interested in facts and less interested in attacking "liberals" and the President, he might concede that the President's willingness to act by executive action flows from his own party's refusal to legislate on a wide range of important issues, including immigration. He could even call on his party to preempt the President or to make immigration reform a priority in January. Odds are it will take a year from the time any executive order is finalized to when agencies have new regulations and procedures in place to carry out the new policy -- Douthat should note that if the Republicans who will be in control of both chambers of Congress choose not to pass an immigration law during that year, they have nobody to blame but themselves. If they pass a clean bill and it is vetoed by the President, they will be in a strong position to complain -- but they have no apparent intention of being that responsible.
Among independents, 78% say Obama should work with Congress, with only 19% saying he should go it alone. Even among Democrats, only 39% say Obama should act unilaterally, while 54% say he should work with Congress.
Douthat next resorts to the notion that the midterm election stands as some sort of informal referendum on the President's agenda, I guess signifying that he's supposed to abandon his agenda in favor of whatever the Republicans want. By now, Douthat should be aware that his depiction of a midterm election as a plebiscite is not, in fact, its role, nor is it how legislators treat the outcome of an election. What the election does do, however, is give the Republican Party control in both chambers of Congress, and tremendous latitude to pass an immigration reform bill of their own design come January 1 -- or, if the House Republicans choose to do so, even during the lame duck session.
Douthat follows up by describing his column as "shrill-but-accurae", which shows, I guess, that he can be half-right. After reiterating his position that the number of people who might benefit from the executive orders is larger that with similar prior actions, percentages apparently being beside the point, Douthat expresses the belief that President Obama hopes that his executive orders create "facts on the ground" that a future President won't easily be able to reverse. Wow, now that's the sort of brilliant insight that makes clear why he got his NYTimes gig. Next column, "I just looked in a mirror and realized that there's a nose on my face."
Douthat believes that the executive orders might not be reversed because a "moral obligation" could arise; it's not clear why Douthat believes that such a "moral obligation" would sway a Republican president or legislators. He argues that the "moral obligation" would result in "a form of political pressure", with its supposedly being harder for government "to retract a benefit than to grant it in the first place". Again, no explanation as to why he believes the Republicans -- their party being dedicated to rolling back Medicare, Medicaid, Social Security, and other aspects of the social safety net -- would not give it a college try. Oh, but then he gets to the real issue -- that we're talking about "a Republican establishment that’s fearful of doing anything to alienate Latinos in a presidential year".
A reasonable interpretation of that last point is that the rest is window dressing. Douthat knows that the problem is not so much an issue of executive overreach as it is an example of Republican Party dysfunction. The faction that wants to pass immigration reform can't get a bill past the party's anti-immigration factions, but if you have some form of immigration reform in place the party as a whole won't want to touch the issue for fear of alienating an important voter bloc.
[Recognition of Republican reluctance to alienate Latino voters] is, of course, part of the political calculation here … that claiming more presidential authority won’t just accomplish a basic liberal policy goal, but could also effectively widen the G.O.P.’s internal fissures on immigration, exploiting the divergence of interests between the congressional party and its would-be presidential nominees.)It's not the President's fault that Douthat's party is dysfunctional on this issue. It's the fault of its elected representatives.
Douthat makes a rather incredible statement,
Then finally, even setting all of the foregoing aside, even allowing that this move could be theoretically reversed, pointing to the potential actions of the next president is still a very strange way to rebut complaints about executive overreach.It's as if Douthat has never before heard of an executive order. Could he be so ignorant of the U.S. system that he's unaware of the thousands upon thousands of executive orders that have been signed by past administrations, or that there's absolutely nothing unique or special about how Congress or a future President would respond to Obama's proposed administrations as compared to any other executive order?
But that reality doesn’t really tell us much of anything about whether a particular moves claims too much power for the executive branch itself. Even in the fairly unlikely event that Chris Christie or Marco Rubio cancels an Obama amnesty, that is, the power itself will still have been claimed and exercised, the line rubbed out and crossed; the move will still exist as a precedent, a model, a case study in how a president can push the envelope when Congress doesn’t act as he deems fit.Given his prior concessions, Douthat knows that's a specious argument. When you're talking about actions that literally track the footsteps of Ronald Reagan and George H.W. Bush, you're not talking about a new line being set. Perhaps Douthat means to indict Reagan and Bush for moving the line that Obama is treating as a fair limit? No, of course not. We're dealing with a standard Republican argument that boils down to, "Whatever may have happened under a past Republican president, it's different when a Democrat does it."
Douthat could have offered a reasoned explanation for why immigration reform is a bad idea, or why his political party is correct to oppose it. He could have offered a balanced argument -- yes, it follows precedent; yes, it follows Republican precedent; yes, it flows from Republican obstruction in Congress; but it's still a bad way to implement policy. He could have implored his party to finally pass an immigration reform bill and render the issue moot. But any of that would be far too surprising. Instead, predictably, Douthat makes what is at its heart an appeal to fear, built on the weak foundation of the slippery slope.
Me? As this whole issue could be preempted if Congress simply does its job, I call on Congress to do its job. If Congress can't do that much, even as Douthat bleats about executive overreach, presidents will be effectively forced to rely on executive orders to circumvent Congressional gridlock. That's bad for the country, but in most cases it will likely be worse for nothing to get done.