Agreeing with Critics

Heckled by activists, President Obama declared yesterday that he "just took an action to change the law" in issuing his executive actions on immigration.  Many of the defenders of executive supremacy have argued that the president is only prioritizing enforcement of the laws rather than changing the laws, and many opponents of the president's actions have argued that they have crossed a line between prosecutorial discretion and the executive rewriting the laws.  Inadvertently, the president seems here to be agreeing with the critics of his executive authority that he is actively changing the law.

Many of those who have criticized the Obama administration's record of minimally enforcing immigration laws have argued that an influx of illegal labor undermines the wages of the average American.  A number of those critics have also worried that the president's executive actions on immigration could further harm the economic prospects of native-born Americans and legal immigrants.  Peter Beinart, who has vigorously defended the president's sweeping use of executive authority, agrees that President Obama's decisions would actually harm many Americans: "Will those opportunities [for illegal immigrants affected by the president's actions] come at the expense of some other Americans, whose legal status had previously given them an economic advantage? Sure."

Edict Issued

President Obama has issued the vaguest outline of his actions on immigration.  As Steve Holland and Roberta Rampton of Reuters phrased it, the president "imposed the most sweeping immigration reform in a generation on Thursday."

Many Democrats in Congress seem to be willing to cede more power to the president. But a few dissenting voices have started to rise. Perhaps the starkest criticism came from Senator Angus King, an Independent from Maine who caucuses with the Democrats:

King...wondered if the next president would come in and use executive action to pull the plug on the Affordable Care Act’s online insurance exchanges.
“I’m afraid the president has changed the subject from immigration to his action. The headlines from the debate this weekend won’t be about immigration, it will be about, ‘Can the president do this? Should he do it?’” King said. “How are we going to feel when a future president feels that the Affordable Care Act is a bad law?”

Time will tell how many Democrats sign on to this line of thinking.

Beyond Partisanship

At NRO, I examine some of the hints of potential resistance to the president's case for executive supremacy:

For all the president’s invocations of the need to transcend rank partisanship in 2008, the Obama administration might have expected that the president’s sweeping executive actions would cause the Beltway-media complex to dissolve into partisan controversy. However, as the president edges closer to announcing his executive actions, there are signs that the White House’s game plan might be facing some difficulties. Recent rumblings from the media and the silence from congressional Democrats suggest that, if the president does indeed take sweeping action, the administration’s preferred media storyline could be scrambled and the president’s case for executive supremacy could face considerable opposition.

The president and his allies are likely to try to cast this issue of executive authority in partisan terms.  If opponents of executive overreach are going to be successful, they will likely need to shift this debate past partisanship to focus instead on deeper principles and more enduring precedents.

Prelude

It seems as though President Obama will proclaim his executive actions on immigration tomorrow.  A WSJ-NBC poll showed that only 38% of Americans support the president taking unilateral action on immigration.  As a point of reference, Richard Nixon never seemed to dip below 40% of public support for his policies in Vietnam, according to Gallup.

It's also worth noting that, in the lead-up to the president's proclamation, he will be reportedly dining exclusively with congressional Democrats tonight.  The president may be hoping that partisan polarization will allow him to centralize power further through executive decrees.

Uncharted Territory

At the Washington Post, Karen Tumulty and Katie Zezima note that the president's case for executive supremacy will "will expand the authority of the executive branch into murky, uncharted territory."

Meanwhile, Michael D. Shear at the New York Times also draws attention to the historical ironies of President Obama's potentially sweeping executive actions on immigration:

[President Obama is] poised to ignore stark warnings that executive action on immigration would amount to “violating our laws” and would be “very difficult to defend legally.”
Those warnings came not from Republican lawmakers but from Mr. Obama himself.

Some in the media seem increasingly to be worrying about the broader implications of the president's case for a super-charged executive branch.  (Even some voices in The New Republic are starting to express concerns.)  Charles C.W. Cooke asserts the importance of Constitutional norms for the Republic---and fears that the president's actions may imperil some of these norms.

It remains unclear whether congressional Democrats will sign on to the case for executive supremacy.  Harry Reid, Dick Durbin, Chuck Schumer, Patty Murray, Bob Menendez and Michael Bennet all signed a letter cheering the president's reported desire to take more power for himself.  But Greg Sargent passes along the worries of various activists that some Democrats might not be so sure about executive supremacy:

Among the Democrats believed to be at risk are Joe Manchin, Heidi Heitkamp, Jon Tester, Claire McCaskill, and Joe Donnelly. Angus King (who is an independent but caucuses with Dems) is also a question mark.

Jeanne Shaheen, when she ran for reelection, was critical about the president taking executive action.  And retiring Michigan senator Carl Levin has now implied that the GOP's desire to confront the president on sweeping executive action would be quite legitimate.  In the days ahead, might not more Democrats, having realized the implications of the Obama precedent, step forward?

To Act or not to Act

Michael Warren has some intriguing inside reporting on what congressional Republicans are thinking about doing in response to sweeping executive action on immigration.  Josh Siegel also outlines some of the various strategies being considered by Republicans.

A question that still needs to be addressed: will any Democrats in Congress complain about a shift toward executive supremacy?  Some on the left outside of Congress have warned about the precedent potentially being set by President Obama here.  Will any elected Democrat speak out?

Drawing Battlelines

The New York Times confirms FOX's earlier reporting about President Obama's executive actions on immigration.  Steny Hoyer, the Democratic Whip in the House, rallies for executive supremacy.

Speaker Boehner is speaking out strongly against the president's rumored plans.  Mark Krikorian games out ways that the House could try to subvert the president's immigration power grab:

This is why the message of today’s editorial rejecting a long-term budget deal made in the lame duck is so important. Harry Reid will obviously not agree to any funding riders prohibiting Obama from issuing work permits to illegal aliens. Also, the Republican leadership has already said it’s not going to engineer another government shutdown. But in the next Congress, the House could pull out the Homeland Security budget (rather than fold it into an omnibus funding bill for the whole government) and attach the rider just to that, so when Obama vetoes it, only DHS will be subject to a “shutdown.” The reason for the quotation marks is that it won’t be much of a shutdown since law-enforcement components continue to function as “essential personnel,” including the Border Patrol, the Secret Service, the Coast Guard, ICE, and the TSA. In fact, the chief component of DHS that actually would be idled by a budget battle would be US Citizenship and Immigration Services (USCIS), the very bureau that would have to implement Obama’s lawless amnesty.

David Rutz at the Washington Free Beacon has a very helpful round-up of the president's previous statements claiming that he lacks authority to take unilateral executive action on immigration.

Potential Outline of Executive Action on Immigration Leaked

Fox reports that it has uncovered a draft document of President Obama's plans for executive action on immigration:

The plan contains 10 initiatives than span everything from boosting border security to improving pay for immigration officers.

But the most controversial pertain to the millions who could get a deportation reprieve under what is known as "deferred action."

The plan calls for expanding deferred action for illegal immigrants who came to the U.S. as children -- but also for the parents of U.S. citizens and legal permanent residents.

The latter could allow upwards of 4.5 million illegal immigrant adults with U.S.-born children to stay, according to estimates.

Critics in the Senate say those who receive deferred action, according to U.S. Citizenship and Immigration Services, receive work authorization in the United States, Social Security numbers and government-issued IDs.
Another portion that is sure to cause consternation among anti-"amnesty" lawmakers is a plan to expand deferred action for young people. In June 2012, Obama created such a program for illegal immigrants who came to the U.S. as children, entered before June 2007 and were under 31 as of June 2012. The change would expand that to cover anyone who entered before they were 16, and change the cut-off from June 2007 to Jan. 1, 2010. This is estimated to make nearly 300,000 illegal immigrants eligible.

Earlier tonight, Charles Krauthammer attacked the plan as "constitutionally odious."

Reportedly, President Obama may issue his edicts as early as next week.  It's interesting to note that the president may not be waiting until after Mary Landrieu's runoff election in early December.  Perhaps the president feels the need to ram through now in case opposition to his unilateral actions continues to build.

Coalitions, Coalitions

Noah Rothman offers some reflections on the differences between the Obama coalition and the electoral prospects of the Democratic party:

Surveying the four national elections that have occurred in the Obama-era, analysts will find virtually no evidence to suggest that the Obama coalition is synonymous with the Democratic coalition. When Barack Obama is on the ballot, his coalition of voters shows up at the polls. When he isn’t, they don’t; even despite his personal appeals.

He includes an interesting quotation from one of Mitt Romney's top strategists, Stu Stevens:

“When the Obama campaign won in ’08, it was a hostile takeover of the Democratic Party,” said Stuart Stevens, chief strategist for Republican Mitt Romney’s 2012 presidential campaign. “With two historic back-to-back midterm defeats, all of their operations, their technology, have proven to be ineffective when Barack Obama is not on the ballot.”

As the president increasingly focuses on bypassing Congress in order to enact his executive whims, we'll have to see how many Democrats continue to hitch their stars to the Obama White House.

Breaking ICE

Stephen Dinan has a story in the Washington Times profiling the discrimination lawsuit of a former U.S. Immigration and Customs Enforcement employee.  In the employee's complaint in court, she outlines numerous instances in which ICE officials discouraged enforcing immigration law even against illegal immigrants who had committed felonies.

Thanks to our veterans past and present.  They have helped secure this republic through many a storm.

Setting up the Board

Ryan Lovelace has a very interesting piece up gaming out possible GOP responses to a possible Obama executive action.  At this stage of the game, much of the debate focuses on the use of a continuing resolution on the budget that would include a prohibition on using government funds to support portions of an executive order (such as the printing of work-authorization cards).

Of course, opponents of a presidential power grab are not just playing the inside-the-Beltway game.  They are also working to mobilize public opinion, as this column by Alabama's Jeff Sessions suggests.

Dispatch from the Future

Over at NRO, I sketch out a what it might look like for a Republican president to cite the Obama precedent on executive authority:

Unbowed by disastrous midterm results for his party, President Gerald P. Hedge insisted that he plans on going ahead with executive action on tax reform. “I’ve been very patient with Congress,” the president said at a press conference the day after the midterms. “But the American tax system is broken. And Democrats in Congress have refused to step up to the plate. So I will act as much as I can within the confines of the law to grant the tax reform that our nation so desperately needs.”
An ambitious tax-reform package — headlined by 20 percent rate cuts across the board — passed the Republican-led Senate in 2033 but was blocked by the Democratic-led House. In the lead-up to the 2034 midterms, Mr. Hedge pledged to take executive action to provide what advocates term “tax relief,” but he had delayed announcing the specifics of that action until after the midterms on November 7.

Read the rest here.

Restoring Normalcy

One of the key things emphasized by Mitch McConnell both before and after Tuesday's midterm victory was the importance of restoring normalcy to the U.S. Senate by reviving traditions of consensus and the power of the minority.  Harry Reid's tenure as Majority Leader was often marked by the impulse to make the Senate a tool of the White House and to minimize bipartisan debate, and Senator McConnell, along with many other Republicans and some Democrats, has expressed a desire to restore a sense of comity and independence to the Senate.  There is much to be said on behalf of this desire from a conservative perspective: the Founders did not conceive of the Senate as a tool of the White House or as the instrument of a single leader but as an independent legislative branch where deliberation was encouraged.  Restoring a sense of deliberation is all to the good.

But this restoration can also be a challenging enterprise, as Senator McConnell acknowledged in his press conference on Wednesday.  And it seems as though one early flashpoint will be whether to revive the filibuster for presidential nominees, especially ones to the judiciary.  In late 2013, Senate Democrats went "nuclear" and rewrote Senate rules in order to eliminate the filibuster for all presidential nominees with the exception of Supreme Court nominations.  As I noted at the time, Senator Reid's detonation of the nuclear option did potentially serious damage to Senate Rule XXII, which says that a supermajority of votes are needed to change Senate rules, and, in doing so, injured the consensus-encouraging architecture of the Senate.

Apparently, some Senate Republicans are considering trying to bring back the judicial filibuster, and some conservatives are pushing back against this effort.  A number of conservative leaders---from Gary Bauer to Phyllis Schlafly---have issued a memo warning that Republicans should not try to revive the filibuster for judicial nominees.  Ed Whelan has written a compelling case for why the GOP should not restore the judicial filibuster, and Utah Senator Orrin Hatch and former White House counsel C. Boyden Gray offer their own arguments for why the GOP should not "unilaterally disarm" (a point Ed Morrissey has also reflected upon).

Opponents of bringing back the filibuster emphasize a few points.  A major theme is the idea of reciprocity: if Republicans do bring back the filibuster, Democrats will use it against Republican nominees should a Republican become president in 2016, and, if Democrats regain the Senate and win the presidency in 2016 or 2020 or whenever, they will wipe the filibuster away again.  So Republicans will always need 60 votes to confirm their nominees, while Democrats will only need 51.  Another subtext of reciprocity is the suggestion that returning minority rights to Democrats will in fact encourage them to abuse Republicans when the GOP is in the minority; believing that Republicans will not use Democrats' own tactics against them might encourage Democrats to make even more sweeping power grabs.  Whelan also finds that the judicial filibuster is a historical anomaly, only really becoming systemically applied since 2003 (when it was used against George W. Bush's nominees), so, from his perspective, eliminating the judicial filibuster only returns the nation to pre-2003 Constitutional norms.

Proponents of restoring the judicial filibuster tend to suggest a few things.  A major point, alluded to by Paul Mirengoff, is the claim that some Senate Republicans may be inclined to be very deferential to the president's nominees, so a 51-vote threshold would mean that the president would only have to pick off a few Republicans in order to get an appointment through.  Restoring the filibuster would, according to this theory, mean that the president would need a greater Republican buy-in for any appointment.  Another point suggested by some filibuster-restoration proponents is the need to deescalate the hyperpartisan trench warfare into which the Senate has dissolved and that this deescalation has to start somewhere.  Prior to the election, some GOP Senators suggested their wish to restore the judicial filibuster because they thought that that might be one place to start the process of respecting minority rights.

Wherever one stands on restoring the judicial filibuster, there are a few larger, framing issues worth thinking about:

The Reid precedent of using the "nuclear option" to gut Rule XXII is a major affront to the institutional character of the Senate.  And it seems desirable to redress that affront in some way.  A bell cannot be unrung, but we can try to keep that bell from being rung again.

Due to the Senate's institutional structure as a deliberative body, assaults upon minority rights will also often end up being assaults on the rights and privileges of individual Senators (in both the minority and the majority).  The fact that the Senate has historically required consensus in order to function means that individual Senators from both parties usually have a significant role to play in shaping debates.

The filibuster has likely been overused in past years.  Many (including this author) think that there is a role for the filibuster in the Senate, but it needs to be used responsibly.  If partisan polarization deepens in the Senate and usage of the filibuster continues to escalate, the filibuster will likely continue to be reformed and/or weakened.  (And the legislative filibuster is a distinct issue from one for judicial appointments.)

In his final two years, President Obama seems to be gearing up for an unprecedented (at least since Watergate) assault upon Congressional power.  The Obama administration's new theory of executive power and non-enforcement of laws as placeholder or catalyst for Congressional action runs distinctly counter to many Constitutional norms.  It would be helpful for Congress to speak with a unified voice in order to defend its Constitutional duties and prerogatives.  If restoring Senate comity would help Congress find that unified voice, such a restoration would be an important achievement.


I'm not going to begin to guess here how much stick and how much carrot the GOP Senate majority should use in order to help restore normalcy to the Senate.  The Cold War is instructive here.  Unilateral U.S. disarmament was not a solution, but continued negotiations with the Soviet Union were important in keeping both the U.S. and the U.S.S.R from going nuclear.  Obviously and thankfully, disagreements between Senate Republicans and Democrats are nowhere close to the existential conflict of the Cold War.  If Senate Republicans are going to restore the judicial filibuster, they must have substantial buy-in from Senate Democrats.  Indeed, if Senators are serious about trying to restore Rule XXII, restoring the judicial filibuster may require a two-thirds vote, thereby demanding major Democratic support.  (And it is unclear whether allies of the filibuster could muster that two-thirds vote or even a bare majority at the moment. Also, restoring Rule XXII and/or normalcy in the Senate is distinct from restoring the judicial filibuster.)

The Reid precedent was problematic for the nation's affairs, the institutional character of the Senate, and, likely, many Democratic Senators themselves (after Barack Obama, Harry Reid was one of the biggest vote-getters for Republicans on Tuesday).  It is in the interests of members of both parties to restore the Senate's position as an independent, deliberative body.  Over the next few months, we're likely to witness many discussions about how to achieve this restoration.

Midterm Meltdown

At NRO, I look at how Democratic policy choices helped pave the way for the Republican triumph in Tuesday's midterms:

Winning the presidency during a time of great national turmoil in 2008, Barack Obama had the potential to forge an enduring governing majority. However, the midterms of 2010 delivered a blow to that hope of a broad coalition. The president’s hard-fought victory in 2012 gave him another four years in the White House, but it did not return Democrats to power in the House. And now, in 2014, the president finds his party being rejected at the polls throughout the country. Purported “blue states” like Massachusetts, Illinois, and Maryland have elected Republican governors. Republicans seem to be heading to their biggest majority in the House in decades. Since the 1980 landslide, Republicans had never beaten more than two incumbent Democrats in Senate races during an election cycle. Yesterday, they defeated three (in Arkansas, Colorado, and North Carolina), and Bill Cassidy has a good chance of defeating a fourth, Mary Landrieu, in the Louisiana run-off election.

Despite the clucking of many media mandarins, this outcome was not preordained. Many of the states in which Republicans triumphed at both the federal and state levels are very amenable to Democrats. Arkansas Democrat Mark Pryor is a strong campaigner with a distinguished lineage. He handily won election during the pro-Republican 2002 midterms, and Republicans did not even field a candidate against him in 2008. Democrats won Colorado Senate races in 2004, 2008, and 2012. Arkansas’s Tom Cotton and Colorado’s Cory Gardner were fine candidates (candidate quality does matter), but their campaigns — along with those of many other insurgent Republicans — also relied upon a troubled national landscape.

As Franklin Roosevelt’s example shows, a president elected during great unrest can formulate a new governing consensus. But a president who fails to persuade the American public that he has a viable set of policies can also find his administration struggling. And so President Obama’s administration suffered this rebuke at the polls in no small part because of its own failings.

You can read the rest here.

A few other points:

As Robert Costa explores, the GOP put a lot of work into grooming candidates for this midterm cycle.

I wrote last month about Republican hopes for taking over a House seat or two in Massachusetts.  Well, as in other years, these hopes have been disappointed: Richard Tisei lost to Democrat Seth Moulton in the Sixth, and John Chapman lost to incumbent Democratic Bill Keating in the Ninth.  Interestingly, while Tisei's campaign generated considerably more interest and money, Chapman ended up finishing much closer than Tisei.

Mickey Kaus and Mark Krikorian focus on the immigration implications of the midterms, finding that voters rebuked the president's agenda on immigration.