One-and-a-Half Cheers for Executive Action

When democracy is failing, somebody still has to solve problems.

Imagine that something in your house’s infrastructure is broken: a pipe is leaking, an electric circuit is shorting out — something like that. There’s a guy in town who deals with such problems, but he isn’t coming. Maybe he’s too busy, maybe he doesn’t like you … whatever, he’s just not coming. You know enough to throw together a temporary fix, something that will keep the water damage from spreading or the house from catching fire, but it won’t be the right way to fix the problem and it certainly won’t be up to code.

Worse, given how things have been working around town lately, you don’t know that it will ever be up to code. You could imagine that the professional will be along to fix things the right way next week or in a few weeks, but what’s more likely is that your kludgy fix will lead to another “temporary” kludge the next time something goes wrong, and little by little your whole house will diverge from the standard practices that make houses liveable. Anybody who tries to fix anything in the future will have to know not just plumbing or electrical systems, but the specific lore of your house and the strange things that have been done to it through the years.

Knowing all this, how do you feel about your kludge? Good, sort of. You’re keeping things from falling down or burning up. But you also know you’re taking one more step down a path you don’t really want to follow.

That’s pretty close how I feel about the executive action on immigration that President Obama announced Thursday night. In the short run, I love it. If we can bring four million people out of the shadows, so that they will no longer be exceptions to the systems that keep society working properly, that will be a huge positive for all of us. But it also continues the pattern I described last year in “Countdown to Augustus“, where partisan conflict causes a tit-for-tat series of moves that are all technically legal, but which erode the social and moral norms that the republic is based on. Eventually democracy becomes so dysfunctional that the people cheer when a man on horseback sweeps it all away.

There’s a lot to unpack there, so let’s start by reviewing the immigration problem.

The shadow population. Nobody is really happy about how our immigration system has been working. I can’t think of a single major political figure who will defend it, who will stand up in public and say, “We shouldn’t change anything. Everything is just fine the way it is.”

The government estimates that 11.3 million people live in the United States without proper documentation. Most are Hispanic and more arrive all the time. The total has stayed fairly steady — and maybe even gone down a little — since the Great Recession. But that’s not a stable situation. Eventually there will be some crisis in Mexico at a time when our economy is doing well, and the in-flow will resume.

In the aggregate, these immigrants are probably good for our economy. (You can tell the story in such a way that people working difficult jobs for low wages victimize the rest of us, but that seems like a stretch to me.) It’s possible that native-born unskilled workers are hurt by the competition for jobs. But even here, it’s the shadowy nature of undocumented workers that is the real threat. An employer might prefer an undocumented worker because s/he can’t complain about abuse, unsafe working conditions, or wage theft. Pulling that worker out of the shadows makes the competition with native-born workers more fair.

The biggest problem the undocumented cause is not anything they do as individuals, but that their need to stay in the shadows gums up systems that depend on people coming forward. We have been lucky so far, but imagine if an epidemic of bird flu or drug-resistant tuberculosis got loose in the shadow population, and they not only didn’t show up at hospitals, but kept trying to work (in restaurant kitchens and as janitors and nannies) because no one gives sick days to undocumented workers. The undocumented are also unlikely to report crimes they see, either at the workplace or in their neighborhoods, for fear of being questioned about their status. And the existence of a shadow population provides a natural hiding place for the small number of border-crossers we really should be afraid of, like terrorists or drug-smugglers.

We can’t secure the border. “Secure the border” is a slogan like “end poverty” or “world peace”. It expresses an aspiration that cannot be achieved by any country resembling the current United States.

Ignore the Mexican border for a moment and just consider our Canadian border. Most of it is in remote areas that are not marked by any natural obstruction. (The green areas on the map are the places where there is no water barrier.) In the wilds of Montana or Maine or Alaska, crossing the border is just a walk in the woods; you might have to hop a fence, or you might not even know you’ve crossed. The idea that we’re going to surround our country with five thousand miles of Berlin-Wall-style fortifications is ludicrous.

People can walk into the United States. That’s not going to change anytime soon, no matter who’s president or what laws we pass.

If you don’t want to walk, come as a tourist or student and just stay; that’s how about half the undocumented got here. Are we really going to follow every visitor to Disney World or the Grand Canyon to make sure they go home? The old East German Stasi might have been up to a job like that, but no police system we want to have in America could do it.

Ditto for tracking down and arresting all 11.3 million of our current undocumented residents. A police force capable of that … what else could it do? I don’t think we want to find out, but I would love to hear the conspiracy theories if President Obama proposed a realistic — fully staffed, fully funded — plan to secure the borders and deport the undocumented. Police state! Tyranny!

So we’re not solving this problem by enforcement alone.

The irresponsibility of Congress. In my leaky-pipe metaphor, the professional-who-won’t-come is Congress. President Bush pushed Congress to do something, but it wouldn’t. Under President Obama, the Senate passed a bipartisan immigration reform plan, but the House has done nothing. I mean, literally nothing: It didn’t vote on the Senate’s bill, it didn’t pass an alternative, nothing.

Which would be dandy if the House leadership’s position was that our immigration system is A-OK and nothing needs to be done. If you think nothing is the right solution, then fine, do nothing. (That, for example, is how the global-warming debate is going. Congressional Republicans think no action is needed, so they block any attempt at action. They’re wrong, but at least their position is internally consistent.)

But if you are an official branch of government and you think the country has a serious problem, then you have a moral obligation to work on a solution. The House has totally failed to meet that obligation. House Republicans would rather have the impossible “secure the border” slogan to run on than take responsibility for any constructive action.

So there’s President Obama, watching his pipes leak and knowing that the plumber isn’t coming. So he does something. It’s a kludge. It is meant to be temporary, but might have to hold up for a long time. How should we feel about that?

What the order does and doesn’t do. President Obama’s executive order does not grant anyone legal status under our immigration laws. No one becomes a citizen or permanent legal resident. People who would have been near the bottom of the deportation list anyway — mainly parents of U.S. citizens or permanent residents who have been here four years or more, but also a smaller class of students and other people with economically valuable skills — are invited to come forward and apply for a temporary deferral of deportation. If that request is granted, they will then have legal permission to work in the United States while their deportation is deferred.

The administration estimates that about four million people could qualify.

Is it legal? Last week, before the policy was announced, The Wall Street Journal challenged President Obama to produce “the missing memo“, the opinion from the Justice Department’s Office of Legal Counsel on whether he had the power to do this — implying that he might be so lawless that he had not even asked for a legal analysis. And much has been made of a 2011 townhall meeting President Obama had with Hispanic students, in which he seemed to admit that such an action would be illegal:

With respect to the notion that I can just suspend deportations through executive order, that’s just not the case.

The OLC memo was released before Obama’s speech, and it makes refreshing reading (for those of us who read such things). Moreover, it supports both Obama’s executive order and his townhall statement.

Before I get into the details, I’d like to recall the kinds of memos the OLC was writing during the Bush administration: ones explaining how the President could unilaterally nullify the Convention Against Torture, or why the President had the power to declare American citizens to be “enemy combatants” and lock them up indefinitely without charges or trials. One standard feature of those memos was that they were open-ended: They explained why the President could do what he wanted now, but never described the limitations he might run into if he wanted to do more later. In one, for example, the OLC’s John Yoo wrote:

Article II, Section I makes this clear by stating that the “executive Power shall be vested in a President of the United States of America.” That sweeping grant vests in the President the “executive power” and contrasts with the specific enumeration of the powers — those “herein”– granted to Congress in Article I.

In other words, Bush’s OLC believed the President’s constitutional powers were “sweeping”, while Congress’ powers were limited to the ones specifically enumerated.

By contrast, the Obama OLC’s immigration memo lays out the principles limiting the President’s power, and says that some of what had been suggested is legal and some isn’t. (The part that isn’t — deferring deportation of parents of the “Dreamers” who were the subject of the Deferred Action for Childhood Arrivals order of 2012 — had been rumored to be part of this executive order, but was left out — possibly because the OLC determined it was beyond the President’s power.)

Quoting numerous Supreme Court decisions, the memo lays out four principles that limit the kind of executive action that had been proposed:

  1. “enforcement decisions should reflect ‘factors which are peculiarly within [the enforcing agency’s] expertise’.”
  2. “the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences. … In other words, an agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering.”
  3. “the Executive Branch ordinarily cannot, as the Court put it in Chaney, ‘consciously and expressly adopt a general policy that is so extreme as to amount to an abdication of its statutory responsibilities’.”
  4. “a general policy of non-enforcement that forecloses the exercise of case-by-case discretion poses ‘special risks’ that the agency has exceeded the bounds of its enforcement discretion.”

If, for example, the President were to simply stop deporting people — “just suspend deportations through executive order”, as he put it in 2011 — he would violate Principle 3. The law says to deport people, so the President can’t just say no. But Congress has not provided the resources to deport everyone who is in the country illegally.

DHS has informed us that there are approximately 11.3 million undocumented aliens in the country, but that Congress has appropriated sufficient resources for ICE to remove fewer than 400,000 aliens each year, a significant percentage of whom are typically encountered at or near the border rather than in the interior of the country.

As a result, the executive branch has to prioritize which 400,000 undocumented immigrants it wants to go after each year. Its prioritization can’t be arbitrary, and can’t rely “on factors which Congress had not intended it to consider”. Past Congressional action has emphasized deporting terrorists and other violent criminals, so there’s no problem putting them at the top of the deportation list. Deferring deportation for “humanitarian” reasons has also been recognized by Congress, and keeping families together has been recognized as humanitarian. Also, there is a long history (recognized by Congress) of deferring deportation of people who are in the middle of a lengthy process that might eventually grant them legal status.

Unless they are dangerous criminals, parents of U.S. citizens and permanent residents fit all these criteria. And the executive branch will continue deporting people at the rate its resources allow, giving temporary deferrals — revocable on a case-by-case basis — to low-priority enforcement targets.

But OLC doesn’t find that the same humanitarian concerns apply to parents of the beneficiaries of DACA.

Many provisions of the INA reflect Congress’s general concern with not separating individuals who are legally entitled to live in the United States from their immediate family members. … But the immigration laws do not express comparable concern for uniting persons who lack lawful status (or prospective lawful status) in the United States with their families.

The DACA executive order did not (and could not) give the Dreamers legal standing to petition for the admission of their parents, as citizens and legal residents can. So there is no basis for deferring the parents’ deportation while we wait to see what happens to that petition.

Is this a bad precedent? Vox considered the question: “What could a Republican president do with Obama’s executive power theories?” Their answer is: not much that Bush wasn’t already doing.

Various ideas have been floated for what the executive orders of a Republican president might do through selective enforcement: change the tax laws, give polluters carte blanche to violate the Clean Air Act, waive all the requirements of ObamaCare, etc.

The problem in most of the cases is that debts and penalties accumulate rather than evaporate. Maybe President Perry wouldn’t prosecute you for failing to pay more than whatever flat-tax number he had in mind, but your debt to the IRS would keep accumulating until some future president made you pay, plus interest and penalties. So taking advantage of the offer would not be a prudent move.

In general, I’m not afraid of what a Republican administration might do if it sticks to the four limiting principles the OLC laid out. So the problem is more political than legal: To the extent that Republicans convince the country that Obama is doing something illegal, the next president will have rhetorical justification for doing illegal things too.

That is in fact the longer-term pattern: When conservatives falsely accuse liberals of something, they’re usually laying the groundwork for really doing something similar themselves later on. For example, liberal Supreme Courts were accused of “making up rights” for women and minorities; so when conservatives took over the Court, they felt justified in making up rights for corporations.

Now they’re telling us that the Democratic president is writing his own laws. Whether that is true in some literal legal sense or not — and I don’t believe it is — in their own minds the groundwork is being laid for future Republican decrees.

What to do? The frustrating thing about the pattern laid out in “Countdown to Augustus” is that there’s never a good place to make a stand against it. The encroachments are usually in the realm of norms rather than laws. Typically, you see a disaster looming or an injustice happening, but your opponents have taken some legal-but-unprecedented action to block the usual way the Republic would take action against it. You have the legal power to act anyway, but in a way that just isn’t done. If you act, your opponents feel themselves put in a similar situation, and they then look for further norms they can break to regain the upper hand. Eventually, people are finding loopholes in the laws against murder and treason.

But do you let your opponents gain advantage by breaking norms, without responding? Do you let the injustices continue or the disasters strike, just to preserve a norm of political behavior that the other side won’t respect anyway?

President Obama has patched a pipe in a kludgy way. In an ideal world, it would only have to hold until the plumber can get here. But the plumber’s not coming. So I’m glad the patch is there. But I’m not happy.

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  • coastcontact  On November 24, 2014 at 2:34 pm

    We are not now on the road on the Road to Augustus. If we are we have lost our way. Abraham Lincoln gave us the Emancipation Proclamation. He also gave us Thanksgiving. We also survived the FDR era when he tried to pack the Supreme Court.
    I do agree the USA is stumbling. I have no solutions.

  • Dan  On November 25, 2014 at 9:35 am

    An argument typically made by people supporting unlimited gun ownership is that the guns are needed to protect us from an over-reaching, and potentially dictatorial government. I’m curious if you think the ideas presented in “countdown to August” support that argument.

    • weeklysift  On November 26, 2014 at 10:09 am

      No, because I don’t see any constructive role for guns to play in that scenario. Armed resistance of the Cliven Bundy style just gets us to a local warlord system, it doesn’t restore democracy.

    • weeklysift  On November 26, 2014 at 12:28 pm

      One more point worth making here: One of the downward steps in the spiral (which we haven’t reached yet) is when each side has its own private army, like the Brownshirts. That’s a step towards chaos, not back towards democracy.

      Think about what our current right-wing militias would do if a military coup overthrew Obama. Would they fight to restore the elected government, or would they welcome our new military overlords?


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