Want to know just how much Obama overreached on executive power? Wait for America's next 'king'

http://www.theguardian.com/commentisfree/2014/nov/21/obama-executive-power-action-immigration-legal

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On Thursday, President Obama announced that he will use executive action – and push the limits of the law – to shield as many as 5m undocumented immigrants from deportation. The reaction from Republicans, even prior to his official announcement, was predictably measured: imminent Senate Majority Leader Mitch McConnell argued that Obama has waved a “red flag in front of a bull”; Senator Ted Cruz invoked Cicero and called the president “an unaccountable monarch imposing his own policies in defiance of the American people”; House Majority Leader John Boehner said Obama “sure acting like ... an emperor”.

Boehner actually invoked perhaps the emptiest threat in known human history on Thursday, asserting that if Obama acts, “There will be no chance of immigration reform moving in this Congress.” I suspect that Obama can live with his actions and their success in reducing the likelihood that immigration reform will pass in the House from 0% ... to 0%.

It was inevitable that the Republican reaction would be overwrought (“dictatorial”!), inappropriate (“sex trafficking”!), pathetic (“ethnic cleansing”!) and/or downright stupid (“anarchy”!). But do Obama’s actions give the rest of us something to worry about? Hell, yes – I’m not exactly looking forward to President Rand Paul unilaterally repealing the Civil Rights Act for the duration of his presidency.

Still, Obama’s move on immigration may reflect some worrisome trends in the expansion of executive power – but that doesn’t mean he’s morally wrong to unilaterally act, nor constitutionally limited from doing so.

Is it the executive order legal? Probably, yes. Separation-of-powers arguments do not involve mechanical precision, and it’s not impossible to argue that Obama’s actions violate the Constitution. But the arguments will be necessarily weak. As Ben Wittes explained at the Lawfare blog, Congress gave the executive branch discretion over when to issue deportation orders and it didn’t require the attorney general to issue deportation orders for everyone who is theoretically eligible for deportation. Obama’s more systematic refusal to deport people eligible for deportation might violate the spirit of the law, but it doesn’t violate the letter. Discretion in law enforcement is inherent to executive power, and in the case of immigration enforcement, Congress did not even try to eliminate it.

Claims that Obama’s refusal to deport people makes him a lawless tyrant are, to be charitable, overstated.

Does that make his executive order beyond reproach? Not necessarily: the letter of the law matters, but norms also matter, and there are plenty of procedural manoeuvres that can subvert basic democratic principles while being perfectly legal. The frightening plan offered by some Republicans to rig the Electoral College is at war with basic principles of democracy, but it’s probably perfectly legal. The Senate could, hypothetically, impose a de facto supermajority requirement on legislation, refuse to confirm any judicial or executive branch nominees, and vote to add 20 new seats to the US supreme court without exceeding its formal constitutional powers – but that wouldn’t be good for our government. That wouldn’t be good for anybody.

American democracy can’t really work when everyone acts to the maximum extent of their legal power all the time – even if lawyers would all be making some solid overtime pay, there’s balance within checks and balances.

Obama’s executive order is not as dangerous as trying to rig the Electoral College or summarily rejecting all supreme court nominees, but it’s far from an ideal way to address immigration reform. If the Republican party was at all interested in actual governance, a mediocre immigration reform proposal passed by Congress would be preferable to an executive order, which can be undone with the stroke of a pen after the next election (which will not have Barack Obama on the ballot). But that also undermines claims that Obama’s executive order represents “tyranny”.

Does using executive privilege to achieve immigration reform set a dangerous precedent? Well, long before Obama even ran for elected office – as Erwin Chemerinsky and Samuel Kleiner observed at the New Republic – Ronald Reagan “took executive action to limit deportations for 200,000 Nicaraguan exiles” and the first President Bush did the same for some Chinese and Kuwaiti citizens. At most, Obama’s actions differ only in degree, not kind.

In a more general sense, presidents have been pushing the limits of their constitutional authority since the beginning of the republic. If you had asked Thomas Jefferson in 1799 if the Louisiana Purchase was constitutional, he would almost certainly have said no – but we aren’t giving the land back. (Admittedly, sometimes I’m tempted to say that the US should look for the receipt and return some of those now-red states to France in exchange for a few dozen cases of Châteauneuf-du-Pape.)

It’s understandable for liberals to worry that just because Obama used his executive authority in this way, some future Republican president – like Rand Paul the Terrible, or Emperor Marco Rubio, or His Highness Ted Cruz – might push the limits of the law over the edge. But it’s pretty unhelpful, too.

Both the second Bush administration and the actions of Republicans in Congress make it abundantly clear that the next Republican in the Oval Office is going to push toward – and probably beyond – the limits of his legal authority, no matter what Obama does. (For instance, George W Bush’s warrantless wiretapping program, established by executive order, contradicted a statute outright, which Obama’s order does not.) If hypothetical president Rand Paul wants to refuse to enforce the Civil Rights Act, he’s not going to be dissuaded because Obama refused to act on immigration.

Obama’s actions are legal, they’re salutary on policy grounds, they have ample historical precedent, and they certainly don’t contravene actual existing norms of American politics. They’re not the ideal way of addressing the immigration issue but, at this point, they’re the best that can be done. Republicans chose the game, and “King” Obama isn’t doing anything wrong by throwing in his ante.