August 8 2014
Nullifying Congress -- and the Constitution
Rachel DiCarlo Currie
Just wanted to follow up on Charlotte’s recent post about the Obama administration’s threat to enact a massive new immigration amnesty via executive order. It’s good to see the Washington Post editorial board remind President Obama that legislative gridlock is no excuse for executive power grabs. “Obstinate, hopelessly partisan and incapable of problem-solving, Congress is a mess,” the Post declared earlier this week. “But that doesn’t grant the president license to tear up the Constitution.”
Speaking Wednesday on a Fox News panel, Ron Fournier of National Journal warned that granting amnesty to several million illegal immigrants by presidential diktat “would be a nuclear bomb that would blow open and make this country even more divided in a way that most Americans just don’t want.”
Even liberal blogger Kevin Drum has acknowledged that such a unilateral amnesty would raise legitimate constitutional concerns: Were Obama to issue an “an unusually bold executive order” with “a broad scope,” writes Drum, “then I agree that it might very well represent presidential overreach.”
The stakes in this debate are much higher than they are in normal policy fights. That’s because this debate isn’t really about good-versus-bad policy; it’s about the Constitution and the rule of law.
As I noted in a previous post (borrowing from the work of law professors John Yoo and Robert Delahunty), if “prosecutorial discretion” can allow the president to suspend enforcement of U.S. immigration laws against several million people, then surely it can allow him to suspend enforcement of tax, environmental, labor, and other laws -- right? And if the president can suspend enforcement of all those laws, then what are the practical limits on executive power? When you think about the issue in those terms, it becomes clear that a unilateral mass amnesty would precipitate a genuine constitutional crisis.
(It would also invite another wave -- potentially a very large wave -- of illegal border crossers. Indeed, the Obama administration’s lax enforcement policies were a primary driver of the current influx of Central American minors, and a huge new amnesty would surely have similar effects.)
Let’s remember what President Obama himself said last November, when a heckler in San Francisco urged him to make broader use of executive orders:
“I’m going to actually pause on this issue because a lot of people have been saying this lately on every problem, which is, just sign an executive order, and we can pretty much do anything and basically nullify Congress.” When people cheered, Obama responded: “Wait, wait, wait. Before everybody starts clapping, that’s not how it works. We got this Constitution. We got this whole thing about separation of powers and branches. So we got to -- there is no shortcut to politics. And there’s no shortcut to democracy.”