If our president keeps flouting the Separation of P’s,
just what should a good D say?
Say little, say nothing, or cheerfully reply,
Jonathan Chait writes a piece titled “Obama’s Immigration Plan Should Scare Liberals, Too.” He supports the policy content of the plan, which would grant “temporary” legal status to up to 5 million illegal aliens, but opposes the manner of its proposed effectuation, which would be an executive declaration followed by non-enforcement of the existing law against those granted the legal status. For more details on the rumored-to-be-in-consideration plan, which I call “Big Amnesty,” see Ross Douthat’s important editorial against it. I have noticed only one weak denial that it is in consideration from a White House spokesperson, and there has certainly been no promise from Obama that it is now off the table for good.
Liberals should be scared by this, definitely. I applaud Chait for saying so. His piece has a few flaws, however.
First, he never uses the word “unconstitutional.” Odd, isn’t it? Well, if you read his piece twice, you’ll notice that Chait actually speaks of this as a debate not about violations of the Constitution, but about violations of nowhere-written-down “norms” of congressional and presidential behavior that he says are needed to maintain our Constitution. Apparently, none of Obama’s actions (unlike several taken by the Republican House) have so far violated those “norms,” but the Big Amnesty would violate them. Chait’s framing of things in this way lets him avoid having to say whether Obama’s previous law-suspension actions violated the Constitution or not. Clever.
Second, his piece is too short, and too drained of passion. Where are the two-thousand words of outrage against what has been an obscene lack of liberal opposition to this proposal? Where are the high-toned calls for Democrats to forthrightly support the Constitution? My self-promoting joking aside, his piece does lack the requisite urgency of tone. And its timing, coming two-and-a-half weeks after Obama first floated of the Big Amnesty idea, similarly undercuts the feeling that this is something worth being scared about.
Finally, nowhere in the piece does he demand of Senator Tim Kaine (D-VA) an answer to this simple question posed to him many months ago by a Weekly Standard reporter: “Are there any parts of Obamacare that the president can’t suspend?”
I bring it up here, because that question that cuts to the heart of the debate. I think reporters should be asking every Democratic representative and candidate that question. For clarity’s sake I’d rephrase it this way:
“Are there any parts of Obamacare that it would be unconstitutional for the president to suspend?”
Senator Kaine’s response to the question was to dodge it, and to excuse his not replying on the grounds that “he is not a scholar.” Of course, upon other more complex topics regarding executive power he presents himself as rather scholarly, quite concerned with the Founders’ intentions, and ready to answer all questions of constitutional and legal detail.
Few Democrats will prove willing to answer the question, because even though it might seem to make intuitive sense to allow a president to make a few minor changes to a very complex law so as to allow its main work to be done effectively, they can find nothing in the Constitution that permits such. In fact, no non-arbitrary rule for limiting such could be formulated for any constitution. How few is few? How minor is minor? How complex must the law be? Etc.
Thus, the real answer to the question would either be that 1) our actual politics allow every president as many violations of the Constitution as he or she can get away with in the court of public opinion, so that the “not getting away with it” prospect of Obama’s Big Amnesty plan, and the “Republican presidents might now do the same” prospect are the only really scary things about it, or 2) that presidents can refuse to enforce any parts of any law, up to all parts of said “laws.”
2) means a Republican president could refuse to enforce Obamacare entirely, and any other law they dislike. If you accept 2), you accept reducing the separation of powers merely to this: a president can’t exactly pass a law by himself, but out the mass of federal laws on the books, he can “carve out” via non-enforcement suspensions whatever new legal landscape he wishes. Such non-enforcement suspensions are de facto vetoes, but are not, like constitutional vetoes, subject to being overridden nor prohibited from being “line-item.”
I don’t see how this ditching of our Constitution’s basic structure isn’t precisely what Eric Posner advocated last week when he offered one of the only serious defenses of the legality of the president’s proposal. When the bells and whistles of his argument are removed, it basically boils down to this: when a president decides Congress is “in gridlock” about an issue he believes is pressing, he may suspend the enforcement of laws as he sees fit to resolve said issue, and public opinion will provide the necessary restraint against unlimited use of this remarkable power. Eric Posner’s truly scary TNR editorial is here, and Ross Douthat’s reply to it is here.
But here’s the thing: forthright scholar that he is, Posner is simply illustrating with clarity and consistency the position on domestic executive power that most Democrats actually now hold, whether they can admit it to themselves or not. Chait would resist the idea that he has to agree with Posner, and that is to his credit. But nonetheless, he is in a tricky position, for unlike those, such as the liberal scholar Jonathan Turley, who unambiguously denounced Obama’s various non-enforcement suspensions of 2013-2014 as—there’s that pesky word again!–unconstitutional, Chait’s now opposing the proposed Big Amnesty law-suspension has to be squared with his not opposing the smaller instances of the same type of action. I’m not a Chait-watcher, but I take it that he either played the ignorance card about those earlier violations, as Kaine did, or if that was too ridiculous for him, tried to change the subject of the debate to one about policy, or to one about abrogation of his posited constitution-supporting “norms.” But the main question, about whether this proposed action would violate and the earlier actions did violate the Constitution itself, is very easy to answer. No, the Constitution does not allow a president to repeal laws or parts of laws. And to say or imply that the “little repeals” are allowed, is to logically endorse larger ones.
The Democratic Party’s dodging all serious talk about the constitutionality of the little repeals may have invited Obama’s scary Big Amnesty trial balloon; and alas, its continued silence even as that omen of constitution-abandonment malevolently hovers over there on the edge of our current affairs, a silence interrupted only by a few disgruntled noises such as Chait’s piece, indicates that Posner’s “okay, president” position really could become the one that the Democratic Party openly endorses from here on out.
P.S. Mr. Chait, or sure, Mr. Posner, if you happen to see this, what would your answer be to the question put to Senator Kaine?
P.P.S–UPDATE: Looks likelier now that Chait’s delayed timing in addressing the Big Amnesty proposal was due to his hearing new indications that Obama is going to do it. That seems to also be what Mark Krikorian is hearing, who has an excellent piece today that walks you through the constitutional issues he compares Obama’s “little Amnesty” action in 2012, his pre-2012 delaying of enforcement, and pre-Obama era executive grants of temporary status, to the Big Amnesty proposal. The constitutional issues here are slightly less straightforward than with his suspensions of Obamacare provisions, but Mark helps you sort them out. The guiding question nonetheless remains, ““Are there any parts of Obamacare, or immigration law, that it would be unconstitutional for the president to suspend?”