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.
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