Wednesday, August 6, 2014

The Constitutional Abyss

Over at NRO, I examine some of the theoretical stakes of a presidential power grab on immigration:
Politicians and writers on both sides of the aisle have worried about what Ross Douthat has called a “leap into the antidemocratic dark.” Sweeping action on immigration could push the elastic limits on executive authority to such an extent that these limits would lose all their inhibiting force and become nothing more than limp window-dressing for presidential whim. If the president can rewrite immigration law without congressional approval, what limits would he face? As Yuval Levin has suggested, the president’s case for unilateral action on immigration could, with a few twists, become a case for unilateral action on tax cuts. A president could nullify environmental laws, undo child-labor laws, and rewrite federal law on a gamut of other domestic issues. Making the president the legislator of last resort could, over time, mean that Congress could at best hope to check the president’s dictates by passing laws with veto-proof majorities, which would not stop the legislative center of gravity from shifting from Congress to the executive branch. Such a shift might cheer those who believe that this nation should be governed by a quadrennial dictatorship, but it would run utterly counter to the enumerated principles of the Constitution.
Many members of both parties no doubt realize the deeper constitutional principles at risk from an over-extension of executive authority. With a lukewarm economy, turmoil abroad, and a smorgasbord of domestic controversies, the nation does not need an acute constitutional crisis. If the humanitarian situation on the southern border can in part be traced to the president’s earlier unilateral actions on immigration (and there is considerable evidence that it can be so traced), further sweeping executive action on immigration could lead to further misery — as President Obama himself worried in 2010. The president can claim no urgent crisis in order to justify, say, granting work permits to millions of illegal immigrants; if the need was so great, why did he not work to pass immigration reform (as he had promised that he would) in 2009, when Democrats held great majorities in Congress? Partisan expedience then does not excuse executive overreach now.
You can read the rest here.

The Washington Post has come out to urge President Obama to "think twice" about "tear[ing] up the Constitution" by overstepping the bounds of presidential authority on immigration.

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