Who’s Afraid of Executive Action?

New York Times

By Ross Douthat

November 17, 2014

Who’s Afraid of Executive Action? 

As a follow-up to my latest shrill-but-accurate column on the president’s plan to bypass Congress and make immigration policy on his own, let me say something (not for the first time) about the common claim that this isn’t really a case of the president making law on his own, because everything he’s doing is potentially provisional, and subject to reversal by a future president. Here’s Slate’s Josh Voorhees, offering a version of that argument:

 

…  it’s important to remember that the bulk of Obama’s actions will be temporary. There’s no guarantee that they’ll remain in place after he leaves office in two years. What happens after that will be in the hands of the next president.

 

… Despite what conservatives are suggesting with their talk of “executive amnesty,” the president doesn’t have the unilateral power to make someone a U.S. citizen or permanent legal resident. As Gregory Chen, the advocacy director for the American Immigration Lawyers Association, explained to the Center for American Progress this summer: “[Obama] can’t simply say, ‘I’m going to change the criteria for a green card and give it to people I think should be eligible, such as someone who has lived here for five years and is contributing well to the community.’ ”

 

Like DACA, Obama’s forthcoming plan will be based on “prosecutorial discretion,” which affords a president plenty of wiggle room to decide how he wants to enforce the laws that are on the books. While such a move is supported by plenty of legal precedent, it’s also fleeting by nature. Once Obama leaves office, that prosecutorial discretion will fall to his successor, be that President Hillary Clinton, President Chris Christie, or anyone else.

 

So, three points. First, as Voorhees himself goes on to concede, even in the strictest legal terms the line between temporary and permanent relief isn’t always that bright, because a move like this does probably open a pathway to green cards for the unauthorized spouses of lawful residents — as many as 1.5 million people, potentially, which is itself much larger than the earlier DACA grant.

 

Then second, whatever the legal realities, in practical and political terms it’s clear that Obama is expecting this move to create facts on the ground that no future president will be able to reverse. And that expectation is well-founded, because for a variety of reasons the “temporary” exercise of prosecutorial discretion almost always leads to permanent residency for immigrants affected. For one thing, once a government has taken the step of formally inviting a particular population to take jobs and (by implication) put down roots, there’s a stronger moral obligation not to consider deportation, in addition to the usual “bureaucratic processes in motion tend to stay in motion” realities. For another, with that moral obligation comes a form of political pressure, because what’s true of other areas of public policy is true of immigration status as well: Loss aversion and status quo bias are very powerful forces, and it’s much harder for the political system to retract a benefit than to grant it in the first place. Then add in features specific to our political environment — particularly a Republican establishment that’s fearful of doing anything to alienate Latinos in a presidential year — and you have a scenario where it seems very unlikely indeed that a major executive action by this president would be speedily undone. (Which 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.)

 

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. As long as the United States elects its chief executives it will always be true that one president’s unilateral policy move can be theoretically reversed by the next one. 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.

 

Which is why it would have unreasonable to expect, say, liberal and libertarian critics of George W. Bush’s expansive claims of wartime authority to be mollified by being told: “Don’t worry, when you elect a president, you can run Guantanamo and the black sites and the N.S.A. the way you want, so stop complaining and just focus on the next election.” Those critics did focus on the next election, and in 2008 they won it, and put a liberal constitutional lawyer in the Oval Office in Bush’s stead. But in the end the Bush administration created precedents and facts on the ground that his notionally civil libertarian successor just accepted, and claimed powers that a liberal president has often (if oh-so-reluctantly) exploited to the hilt. And all of this didn’t just happen for bureaucracies-in-motion reasons; it happened because new precedents create future norms, and the more power a given executive claims the more powers are available to his successor, because the initial claim makes subsequent ones that much more imaginable and normal-seeming.

 

So the ultimate policy impact of Obama’s promised move in this case, while obviously important, is not at all the most important reason to hope he thinks better of it and backs off. The stakes are higher than immigration; they have to do with how we’re governed, by whom, and under what limits and constraints. And whatever happens with the policy itself in the long run, those limits are about to be significantly reduced.

For more information, go to:  www.beverlyhillsimmigrationlaw.com