In the last few days, defenders of President Obama’s unilateral move on illegal immigration have drawn a few new parallels to bolster their case. They have likened his move to John Boehner’s failure to hold a House vote on the Senate-passed immigration bill, to congressional Republicans’ (temporary) unwillingness to pass legislation raising the debt ceiling without certain conditions, and to Mitt Romney’s promise to implement various policies such as relief from Obamacare via executive order. The president’s action on immigration is, if these parallels hold, no more problematic than these Republican ones; and conservatives who criticize that action as a violation of constitutional norms are being inconsistent, if not insincere.
The first two parallels aren’t very close. There is no constitutional requirement, or even sub-constitutional norm, that requires a legislative chamber to vote on bills that have majority support. Harry Reid’s Senate has come under criticism for a lot of reasons, but no reasonable person has complained that he violated a constitutional duty by failing to hold a vote on a bill to kill the medical-device tax. Nor is there a requirement that people vote for debt-ceiling legislation of a particular specification (whether or not that is the responsible thing to do in certain circumstances). There is, on the other hand, a constitutional requirement that the president execute the laws and that Congress do any legislating.
Romney’s promises are a better parallel. I am not at all sure that a President Romney would have followed through with them upon sober reflection. If he had suspended parts of Obamacare by fiat, conservatives might well have refrained from providing warranted criticism because they liked the results or because they felt it would be unilateral disarmament to let Obama suspend parts of it without following suit. In that case, conservatives would have been wrong.
It seems to me that the best available constitutional defense of Obama’s immigration initiative has to begin by throwing out almost everything Obama and his allies have said about it and treating it as trivial. If the illegal immigrants allegedly covered by the new policy really are still subject to deportation at any time, then Obama has just continued current policy while putting an anti-constitutional gloss on it (in which he acts where Congress won’t, lets illegal immigrants “get right with the law,” etc.). And that doesn’t seem like much of a defense at all.