Wednesday, December 10, 2014
President Obama has dramatically reduced the federal government’s infringement of individual freedom – and conservatives are furious! Yes, that’s right. He has issued an executive order that directs the Department of Homeland Security to stop the prosecution and deportation of an enormous number of undocumented immigrants; that is, he’s freed millions of people from governmental oppression. Before Obama’s order, they were afraid of arrest, detention, punishment and deportation; they feared the power of the state, and they no longer do.
Because of their respective positions on immigration, liberals are quite happy about this broad almost-amnesty and conservatives are quite upset about it. But conservatives are also quite upset over Obama’s methods, calling them “impeachable” and “tyrannical”, claiming that by ignoring Congress and changing policy by executive order he is acting illegally and unconstitutionally. On a technical level those questions remain murky, particularly since immigration law does allow the executive a fair amount of latitude regarding whom to prosecute. There are over 11 million undocumented people living in the United States, but Congress only allocates enough funding to detain and deport 400,000 a year. The executive branch is obligated to prosecute as many illegal immigrants as its funding allows; liberals claim that all Obama has done is to indicate which categories of immigrants those will be. But publicly announcing that entire classes of previously illegal immigrants are now free from prosecution is to de facto make those classes legal (temporarily, at least). In a very real way, the president has done something only Congress is authorized to do: change the law. Even if he isn’t violating the letter of the Constitution, he is in direct violation of its spirit.
That is, he’s clearly defying some very important democratic norms. Both Democratic and Republican Congresses have failed to enact any comprehensive immigration reform for years and the public just elected an explicitly anti-immigrant Republican Congressional majority. Arguments about technical legality and constitutionality don’t address normative concerns since the whole point of norms is to sustain the environment that allows politics and law to succeed. Consider that there was nothing illegal or unconstitutional about the unprecedented and ruthless Republican debt ceiling threats of recent years. Dramatic increases in partisan polarization plus the dysfunction lurking within the separation of powers mean reliable norms are needed now more than ever. It also means they’re more threatened than ever.
Of course, the general destruction of the norms didn’t start in the Obama years. It’s been going on for about five presidents now. But that doesn’t make it right. And that doesn’t make it fair to the millions of recent voters whose wishes Obama just explicitly disregarded. And, of course, liberals should worry that the next Republican president – and there will be one at some point – will also engage in such unilateral action. Although he certainly would have even if Obama had never done any of this. But why give him the excuse? Why open the door for him? Some Republicans are gleefully planning how their president should employ the “Obama Rule” (though more scrupulous ones argue against it). By supporting Obama now, liberals undercut any normative argument they’ll make against that future “tyranny.”
But it’s an unusual tyranny that frees individuals from state oppression. How does it happen that an over-reaching executive ignores the popular will, twists the law, arrogates power to himself, and then uses that power to liberate millions of people? Prosecutorial discretion, that’s how. Obama’s brand of tyranny seems so strange because it’s so limited; all it can do is explicitly decline to enforce the law. But using prosecutorial discretion to – in effect – abolish laws is an inherently conservative enterprise. Why? Because it’s a negative action, it inhibits government. Eric A. Posner explains:
The point is not just that Republican presidents can do what Obama has done. It is that enforcement discretion creates an advantage for Republicans—it favors conservative governance and hurts liberal governance. The reason for this asymmetric effect is that the great bulk of federal law is liberal economic regulation, not conservative morals regulation. A conservative president can refuse to enforce laws, but a liberal president can’t enforce laws that don’t exist.
Immigration is an atypical case in which conservatives want more government and liberals want less, so it lends itself to liberal executive discretion. But the pseudo-Constitutional powers that President Obama has unearthed can easily become the broad weapon of choice for President Christie or President Paul, and that’s because those powers have a libertarian bias. Imagine a GOP president announcing that he’s directing the IRS not to prosecute anyone who fails to pay income taxes above 20%; he will have unilaterally flattened income tax rates. But a liberal president can’t unilaterally raise rates, since prosecutorial discretion only allows the president to do less than the law specifies, not more. Liberals applaud the substance of Obama’s action and overlook the method, but they don’t realize that in this case, method is substance.
What liberals are missing is that Obama is violating democratic norms, not libertarian ones. He’s not violating individual rights, he’s ignoring his obligations as defined by acts of Congress and he’s ignoring the will of people as expressed in the recent election. But the people can restrict freedom and a dictator can enhance it. The liberal welfare-regulatory state that has constrained the power of oppressive social actors – corporations, the rich, racists – was created by popular determination. But if it is to be dismantled, it should be by popular determination as well, not by an unscrupulous conservative president armed with the super-power of broad prosecutorial discretion thoughtlessly provided him by liberal apologists. Liberalism could not arise and cannot succeed without the will of the people; but the libertarian destruction of the welfare state can now more easily happen without popular consent. It won’t need to remove existing law, just ignore it.