President Obama plans to announce tonight the most extreme assertion of domestic executive power in our lifetimes. The justification he has offered would be almost amusing if it were not so disturbingly hard to distinguish from blackmail: If Congress won’t rewrite our laws the way the president asked them to, he’s just going to do it himself.
The president is expected to promise to halt enforcement of congressional statutes for millions of illegal immigrants and give many of them authorization to work here in the United States. (He is planning on a range of other changes to our immigration laws, too.)
His legal argument is exceedingly weak and obviously disingenuous. The plan’s precedents, such as they are, were responses to discrete crises, did not include positive benefits like work authorization, or were addenda to duly passed congressional amnesties.
President Obama’s plan is none of these things. It will offer work permits to millions of illegal immigrants at a time when many legal immigrants and American citizens are looking for jobs themselves. Much of the plan expands an already unprecedented executive action from two years ago, which put the so-called Dream Act into effect by fiat. And it certainly is not a response to an isolated crisis; indeed, this kind of amnesty can only be assumed to encourage widespread illegal immigration in the future.
In the past, and not the distant past, the president has forcefully and repeatedly argued that he could not do what he plans to do tonight. But, the White House explained yesterday, “The president has been waiting a long time — more importantly, the American people have been waiting a long time — for congressional Republicans to stop blocking a commonsense proposal,” so now things have changed.
There is no Waiting a Long Time or Commonsense Proposal Clause in the Constitution. The separation-of-powers doctrine does not have an expiration schedule — or didn’t until this president announced one. And the public doesn’t even believe that action is urgent or necessary: Various polls suggest that it opposes the president’s executive-action plans by a substantial margin.
Republicans would be right to stand for our system even if they did not have public opinion at their backs. But they do, and the planned Republican response looks far short of what the crisis demands. Yet Republicans at the highest levels appear uninterested in the options available to force the president to do his duty.
One possibility would be to restrict funding for the president’s proposed order. House Republicans should consider a bill to fund the government except for Citizenship and Immigration Services (CIS), the agency in the Department of Homeland Security responsible for implementing the president’s order, and perhaps a few other selected portions of the administration. They could then propose a bill funding these agencies, including in it a prohibition against executing the president’s amnesty. Democrats would have little excuse not to pass the former bill, and, were the president to sign it, both sides could proceed to a focused argument on immigration funding. If the president were to veto the larger bill, or Democrats to block it, a shutdown might occur — but the White House, or congressional Democrats, might end up shouldering the blame.
There are more modes of resistance. Legal remedies can be considered. A Republican Senate should refuse to confirm any attorney-general nominee who is willing to carry out the president’s plan. In their efforts, the GOP should enlist any Democrats who retain a shred of sympathy for written law over the president’s pen.
Congressional leadership has shown almost no interest in any of these tactics. They should consider which of these remedies are most prudent, but they must consider all of them. The strategy should depend in some measure on exactly what reaction the public has to the plan, which, of course, will depend in some measure on how effectively Congress makes its case.
President Obama’s hubris has forced a constitutional crisis. Republicans need to start saying that — and acting like it.