Republican congressional leaders are making one very bad argument and yet again risking uncivil war on the right, in responding to Barack Obama’s wildly unconstitutional amnesty order. Their continuing failure to understand the political dynamics is deeply frustrating.
Again and again, Republican leaders in recent weeks have urged Obama not to issue his order because (in one of many similar iterations) it will “ruin the chances for congressional action on this issue.” The implied promise — one that Speaker John Boehner would obviously like to fulfill — was that if Obama held off, Congress would indeed find a way to pass “comprehensive” immigration reform of its own.
But that gives away the game, on multiple fronts.
First, this promise implicitly accepts the Obama argument that comprehensive reform is such an urgent national need that congressional inaction has “forced” his hand. Boehner and company effectively are saying that the choice is only between executive action and regular lawmaking through Congress. This is wrong. The choice is not between one form of action and the other; it is between unconstitutional executive action and a deliberate, lawful decision by the people’s representatives not to act at all, or at least not now.
The Boehner stance implicitly bolsters Obama’s contention that he is acting within the law, because he is acting in accordance with Congress’s own real will — a will that Congress is merely too inept or too subject to extremist “obstruction” to actually pass. (This is an argument based on the so-called progressive interpretation of the Constitution as an aspirational document rather than a specific, and intentionally limiting, one.) It lets Obama push a notion that seriously imperils the stability of our constitutional system: that the president is empowered to interpret, or is even the embodiment of, some overarching “national will” that would be perhaps more kumbaya-ish if acted on by Congress but that he can implement on his own if the cause is important enough.
In essence, Obama is saying that he is merely speeding up an inevitable action, because the need is so pressing now. The GOP leadership response seems to be that of course it’s pressing, but that it’s their prerogative — not the president’s — to act on it.
Instead, the proper Republican response should be: “We in Congress didn’t act because we as the people’s constitutional representatives chose not to act, and the president must abide by that decision. Period.” There is no national will that has any legal merit unless Congress acts (national defense excepted, of course). And this isn’t an official national emergency, either. The only urgency here is a result of the administration’s unlawful decision not to enforce current law. It’s a subtle difference, but an important one.
The second way this gives away the game is that even after Obama has acted, it puts pressure on Congress to pass something comprehensive — something he can sign — in order to assert Congress’s own prerogatives and override the worst features of his order. If they keep saying that Congress should act, well, it becomes a promise that Congress will act. And since Obama still holds the veto pen, he can continue pushing the envelope on the actual substance of the final legislative package. The Republican Congress will be held accountable to “keep their promise” while Obama sits pretty, knowing that if no law gets passed and signed, his executive order remains in effect.
In their scramble to fulfill their promise while meeting his demands, Republican leaders will force their caucuses ever further from both good policy and the overwhelming majority of conservative activists and Republican voters nationwide. But with the media, the Chamber of Commerce, and Obama all putting pressure on the Republican Congress to fulfill its stated aim of a law of its own, there is no chance — repeat, none — that good policy will result.
The simple reality is that there is no immigration legislation bad enough for Obama to sign that could possibly be reasonable enough for even an immigration “moderate” to accept.
The third way the leadership’s message gives away the game is that it re-quakes the single biggest fault line in the Republican coalition. Any attempt to pass comprehensive reform while Obama is president is guaranteed to send the Chamber types and the conservative movement into paroxysms of fury against each other, just as it did last year when Boehner seemed determined to do something on immigration. Such intra-GOP strife would hobble any efforts, on other issues, to make the newly Republican bicameral majority a successful one.
Immigration is an issue on which, frankly, the Chamber should just stifle itself until a Republican president with an identifiably tough-on-scofflaws attitude is in office. The corporate desire for cheap labor should not outweigh the damage done to corporate bottom lines by the burdensome regulations, taxes, and aggressively biased administrative-law actions that always spew from the Left when a split Right loses elections.
Cynics say that conservatives always think it’s never time for an immigration bill. But there is a good time: A good time would be the third year of a successful Republican presidency during the first two years of which he demonstrated serious, measurably effective commitment to enforcement.
For now, though, Republicans should use the courts and careful legislative methods to fight Obama’s lawless order, not try to compete with it. As long as Obama is president, the idea of comprehensive immigration-reform legislation should remain incomprehensible.
— Quin Hillyer is a contributing editor for National Review. Follow him on Twitter: @QuinHillyer.