Alas. The sin is committed.
Had it been a speech urging the passage of a law, everyone would have to admit it was a very good one, at least by the attention-deficit standards of our day. No, he didn’t mention any of the reasons opponents of the earlier bills had for opposing them, such as inadequate border controls, scant provision for employer sanctions, little reason to think enforcement of it wouldn’t be watered down to near-absence, and yes, his entire “deportation” scenario poses a false choice that very few conservatives are for. But you have to give him this: anyone unfamiliar with the policy p’s and q’s would have left the speech feeling that Obama is on the side of justice.
But it was not a speech asking us or our representatives, to deliberate, and then to vote. No, at the heart of this speech-act was an order. We had no say in it.
What else was missing besides our say? He spoke many times of “immigration” and “immigrants.” He quoted the Bible. But not once did he say the word “Constitution.”
It is hard to know whether to again lament his refusal to speak to us in a manner that assumes we are adults at least slightly interested in constitutional matters, or to thank him for not pretending to revere that which he was in the process of desecrating.
The following sentence, uttered by Abraham Lincoln in his “The Perpetuation of Our Political Institutions” speech, was not one Barack Obama could have said to us tonight without mutual embarrassment:
As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor;—let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children’s liberty.
In case you’re coming to this late, Obama’s order is unconstitutional. The latest defenses of it, some of which have to do with previous orders done by Reagan and Clinton, were demolished recently on the NRO main page by Mark Krikorian and Andrew McCarthy. Indeed, as an ABC reporter helped underline this week, Obama knows it.
At the very least he knows this: trying to lay out the legal rationale he himself had not thought possible a year ago to the American public would be a stretch of the first order. That is, even if he really believes the rationale Holder’s guys have cooked up for him, he knows it is counterintuitive and pushes plausible interpretation to the limit. He has known all along he could never get even 45% of America to believe that this is constitutional. His concern, then, for what we might call the “appearance of corruption” in matters constitutional? For a massive divide in public opinion, about the fundamental legality of a major policy? He has none.
I hope in a separate post to explain how conservatives should strategically assess the situation, including consideration of what this tells us about what Obama remains capable of, and of how they should restrain their tendency to speak of Obama’s action in hyperbolic terms, such as “post-constitutional regime,” “Late Roman Republic,” “dictator,” etc. Heart-felt denunciations are one thing, and certainly are merited, but analysis of the gravity of the situation is another.
This post will linger more in the first mode, weighing the emotional, psychological, and politics-of-the-heart ramifications. Coldly analyzed, Obama is not a Caesar, a Cataline, nor a Benedict Arnold, and much of the constitutional architecture of our republic remains solidly in place. But nonetheless, words like treason, profanation, wound, hubris, tyrannical, fratricide, and madness are entirely appropriate for the metaphorical and emotional mode of human speech that inevitably comes into play upon such an event.
We will read in the days and weeks to come, plenty of hyperbolic fulminating from conservatives. Calls for impeachment, and perhaps for a national strike or protest–both of which I will be likely to support, incidentally–will be heard. For the liberal, and for certain centrists, it will be easy to mock a good deal of this, to dismiss it as some melt-down of the conservative mind.
To them I say the following: what won’t be so easy to dismiss is the lasting sense of hurt, betrayal, and despair this will implant in so many of your fellow citizens’ hearts. To them, November 20, 2014 will go down as a Day of Infamy, and like it or not, you may be hearing about it for a long time. Why?
First, there is the simple issue of democratic say. Who were those representatives who did not agree to any of the earlier immigration bills? They were standing for the opinion and judgment of your fellow citizens. The rules for the game were set. And year after year, immigration reform came up for debate, and for complex reasons, which you can say were bad ones or good, the desired bill never made it through. Such is democracy. But now your fellow citizens are told the rules are not set. They are told to accept your victories when you win by the rules, but that you don’t always have to accept their victories when they so win.
Second, there is the closely related issue of polarization. What could polarize us more? Now, we conservatives will be having our internal debates about how to fight Obama’s order, or at least, to retaliate. It is far beyond the personal offense–we feel bound by our loyalty to the Constitution to do so. The options? Selective defunding. Blanket defunding. Blocking of nominations. Impeachment. Retaliation with one similar order by the next Republican president. Likely, the more vigorous ones won’t be chosen by the Republican leadership. But what will the base do, and particularly if they feel all regular channels of political recourse have been closed to them? Will they try to hold big protests? (I hope so.) Will they advocate some kind of mass law-breaking? (I hope not.) What sort of activists might be brought forward on the coming waves of passion? We don’t know. So every sincere lamenter of polarization cannot but wince at what Obama did tonight.
Third, there’s the issue of limitless expansion of executive power. If you read one my earlier posts on this, such as “Scary Stuff,” you’ll see what I mean. Ask yourself, if this action is constitutional by the new theory, is there any part of our immigration law that it would be unconstitutional for Obama, or the next president, to suspend or alter? Any part of the health-care law? Any law whatsoever? Are we sliding towards letting the Separation of Powers go? Or at least, into a situation where no future president should accept that anyone besides his staff knows where the line really is?
Fourth, there’s the broader ramifications of a president overtly defying the Constitution, and with one of the major parties complicit. Everyone is learning the lesson: if you can violate the law from a position of power, it is okay. What you can get away with, i.e., that which your opponents cannot check without the risk of political set-backs or without getting entangled in endless complications, is what is actually legal and constitutional. Power’s duty to the cause, or simply to oneself, drives one to get away with as much as one can. So the constitutional damage here isn’t simply that if Obama gets away with this, he will likely issue other such unconstitutional orders, and that the next president will try to do the same and so on and so on. We also have to worry about the example the courts will take from this, the example Congress will take from this, the states, the municipalities, the sheriffs, etc. Unlawful executive supremacy may be the immediate threat, but the wider one is of a general lawlessness.
Finally, there’s the desecration. I leave it to you–what images does that word draw up in your mind? Well, that is how many conservatives feel about this, and for us, no well-delivered 14-minute speech pulls any sort of veil over the appalling sight.
Well, that’s where we are. I hope everyone can understand why some dramatic language is going to get employed. It’s no ordinary moment in our history. Perhaps good can come from it. Perhaps real moderates can begin to face the fundamental problems with Barack Obama’s manner of leadership, and its close relation to longstanding patterns of Democratic Party behavior that have got to be changed if we are going to make it as a nation. It’s a moment for everyone to take stock. And for those who can, to pray.