Obama’s Executive Action

David Brooks agrees with the substance of Obama’s executive action on immigration, but believes that he has transgressed the Constitution in the process. The president has usurped the role of the legislature. For Brooks, process transcends substance, so apart from expressing sympathy for the substance of Obama’s action he has little to say about what should be done in addressing the plight of millions of undocumented immigrants, given the gridlock that exists between the branches of government. When it is pointed out that Obama’s action has its precedents in the actions of his predecessors, Republicans as well as Democrats, Brooks responds by noting the scale of the action, 5 million rather than 1.5 million under George H.W. Bush. He does not explain how this makes Obama’s action, but not Bush’s, unconstitutional.

Where in the Constitution is the line drawn on scale, and where in the Constitution are the extent and limits of permissible executive action spelled out? Brooks, a moderate conservative, has been one of the more temperate critics of Obama. Unlike Speaker John Boehner and others, he has not declared that the president has assumed the role of a monarch. (Obama opened himself to the charge by earlier declarations that he is neither a king nor an emperor. See below.) In making the charge, they do not mean to characterize executive action per se as an exercise of royal prerogative—after all, presidents of their own party, the revered Reagan and the lesser Bushes, have felt free to exercise such power. (As I learned from reading Aaron David Miller’s The End of Greatness, perhaps the most expansive executive action in our history was the Louisiana Purchase by one of our founding fathers, Thomas Jefferson, acquired without a constitutional amendment or consultation with Congress to the dismay of critics at the time. “The Federalists would blast him for purchasing ‘a howling wilderness.’…The acquisition doubled the size of the United States and would come to compose about 23 percent of its current territory.”) What is at stake for Boehner and others is not so much the scale of the action, but its substance. The difference in language between the two sides tells the story. For Boehner and his allies, the executive action means “amnesty to illegal aliens,” while Obama aims to document “undocumented immigrants.”

At stake, according to the president’s critics, is our democracy. Has the president usurped the constitutional authority of Congress? The question, it would seem, applies to all presidents who exercise executive power in making rules or laws unauthorized by the legislature. In answering the question, we need to separate the terms, “constitution” and “democracy.” They share common ground, but they do not coincide. There is nothing in the Constitution that either authorizes or forbids actions of the kind taken by Obama, George W. Bush, Bill Clinton, George H. W. Bush or Ronald Reagan. To which we might add: there is nothing in the Constitution that authorizes or forbids filibusters or the willful decision of the Speaker not to allow the House of Representatives to vote on the immigration bill that the Senate passed. Such a vote combining Democratic and Republican votes would probably have produced a bill that Obama could have signed, making his executive action unnecessary. Why has no one pointed out that Boehner is in effect a monarch preventing the majority will of the Congress from expressing itself? My point is simple: executive orders, senatorial filibusters on presidential nominees and holds on bills, often hardly democratic, are products of customs that have evolved and without authorization from the Constitution. Moreover, what is constitutional is not necessarily democratic. For example granting each state regardless of the size of its population the same number of senators hardly contributes to majority, that is, democratic rule. Though we hear criticism, there has been general acceptance of this constitutional arrangement by people across the political spectrum. The fact that there are two senators from Wyoming and two from New York does not provoke outrage. In the matter of immigration reform, the real cause of contention between Obama and his Republican critics is not whether he has violated the Constitution or betrayed our democracy in the process; it is the substance of action.

Let’s, however, stay with process. Constitutional scholars are divided on whether Obama has violated the Constitution. What about Obama himself, a constitutional scholar? Has he gone back on earlier declarations that he is constitutionally obliged to enforce laws and that he is therefore in bad faith in issuing his executive order on immigration? Here are two statements Obama made on different occasions. On March 2011 he said, “America is a nation of laws, which means I, as the President, am obligated to enforce the law. I don’t have a choice about that…With respect to the notion that I can just suspend deportation through executive order, that’s just not the case, because there are laws on the books that Congress has passed.” And on January 2013 he declared, “I’m not a King. My job as the head of the executive branch ultimately is to carry out the law. When it comes to enforcement of our immigration laws, we’ve got some discretion. We can prioritze what we do. But we can’t simply ignore the law.”

So the issue is whether the executive order is suspending law that exists or making new law. He does neither. In his own words, he is not ignoring the law. He continues the policy of deportation, but exercises discretion in prosecuting it, as he has a right to do. Laws on the books are invariably selectively enforced, because the authorities do not have the resources and capability for universal enforcement. There is no way that the government could possibly deport 11 million undocumented immigrants or, for that matter, the 5 million of the executive order. By granting temporary visas to 5 million, it is doing what it normally does in executing laws, exercising discretion and choosing whom to prosecute and not to prosecute. The Administration will focus on those who commit crimes, not on those who “live by the rules.” Even without the executive order, this would probably be the case. What the executive order does or is intended to do is remove the fear from millions of undocumented immigrants, who probably would not be prosecuted in any event and thus “bring them out of the shadows.” It is true, as Obama himself acknowledges, that executive orders are not ideal vehicles for legislative action. (There is the risk that a Republican president will reverse the order and leave those who benefited from it vulnerable to the authorities.) Executive action should occur only in extraordinary circumstances, for example in the case of legislative gridlock—when there is a general sentiment that a critical problem needs to be addressed and neither the will nor the capacity of the legislature seems to be capable of addressing it. Fortunately, the Constitution is sufficiently porous to allow for the executive branch to act when necessary.

There are or should be limits to executive action. In their excellent book It’s Even Worse than it Looks: How the American Constitutional System Collided with the New Politics of Extremism, Thomas Mann and Norman Orenstein provide a succinct summary of the expansive “theory of the unitary executive,” espoused by the Reagan Administration. “That theory holds that the president, as the single head of the executive branch and constitutionally charged to ‘take care that the laws be faithfully executed,’ has broad authority to direct how executive branch employees perform their duties, and that Congress’s authority to check presidential actions is extremely limited. A stronger version of the theory legitimized a very aggressive and controversial assertion of the president’s unique and unchallengeable authority during the George W. Bush administration particularly given seemingly permanent threats to national security after terrorist attacks of September 11, 2001” (173). As Mann and Orenstein observe, “recent Democratic presidents have shown no affinity for the unitary executive theory, with good reason.” Mann and Orestein believe that “the theory is way outside the bounds of the Constitution and the framers’ intent,” and yet they do not repudiate all executive action. They are sympathetic with Clinton’s ambitious move “to conserve public lands, protect American’s medical privacy and create a welfare-to-work partnership.” They seem to have no objection to Obama’s reauthorization of “the No Child Left Behind Act in reaction to the inability of Congress to authorize” it (17), “despite bipartisan support.” Though they do not propose a theory of constitutionally permissive executive action, it is implied in their devastating critique of Congressional deadlock. Failure of Congress to act when necessary would seem to require executive action.

Executive action is a fact and a problem peculiar to our system. As political scientists have noted, European countries avoid the problem because their parliamentary systems combine the legislative and executive systems. They do not suffer divided government. Having fought against the tyranny of the English monarchy, the framers of the American Constitution were obsessed with the need to limit the powers of the executive by creating a system of checks and balances. What the Constitution does not sufficiently anticipate are situations like the one in which we find ourselves at present when the checks overwhelm the balances. A crisis arises and the legislature is not only at loggerheads with the executive, but also divided against itself and unable to act. Political logic dictates that executive action without authorization from the legislature may be required. Which is not to say that it is always justified. The crisis may be manufactured for political purposes. And indeed, even if the crisis is real there may be an admixture of political motives in the action. In the matter of immigration, Obama doubtless has in mind the Hispanic vote, but it is generally clear to Republicans as well as Democrats that the current system is broken, in which case, given Congressional gridlock, executive action would sometimes seem called for. The Constitution in its separation of powers assumes a political culture in which compromise between branches of the government is necessary to the functioning of government. It is the extremists on the right, not Obama, who have violated the very spirit of the Constitution.