Executive Action, Congressional Inaction

President Obama is preparing to issue an executive order on immigration—the executive action that has been promised for some time. As one might guess, the NYT editorial board is pleased. Some supporters of liberalized immigration (including a path to citizenship) are concerned over the damage that Obama’s actions will do to the rule of law. As Damon Linker (The Week) explains:

The rule of law is far more about how things are done than about what is done. If Obama does what he appears poised to do, I won’t be the least bit troubled about the government breaking up fewer families and deporting fewer immigrants. But I will be deeply troubled about how the president went about achieving this goal — by violating the letter and the spirit of federal law.

Yes, yes, yes… presidents have taken extralegal action in the past—George W. Bush’s post-9/11 war on terror is a convenient case in point. But as Linker notes: “No matter how you feel about Bush’s actions, up until now, executive transgressions of the law have been made in the name of protecting the common good from a grave threat in a time of emergency.” Where is the emergency today?

Have we really gotten to the point where the executive can ignore and even violate, on the absurdly open-ended basis of “discretion,” the express intent of a federal law he is constitutionally empowered to execute — not because of an emergency, not because of a national threat, but merely because he wants to be a nice guy?

It appears that we have.

Republicans are so displeased with the President’s executive action that some are willing to use a government shutdown to thwart implementation. As Lauren Fox (National Journal) explains:

Many rank-and-file Republicans see an upcoming funding bill that must pass by Dec.11 as the party’s best shot to stop Obama from implementing his immigration plan. Boehner has signaled that “no option” is off the table, and more than 60 House Republicans have already sent a letter advocating the approach. In the Senate, top Republican Mitch McConnell has attempted to squash any shutdown banter, but some in his right flank still might push for a funding showdown.

Here is an interesting alternative strategy for Congress: legislate. As long as Congress fails to execute its constitutional prerogatives, it invites the President to expand his authority. The invitation, more often than not, will be accepted.

While Congress is at it, it might turn to some other areas that demand attention (e.g., passing a new Authorization for Use of Military Force instead of allowing for the ongoing illusion that the 2001 A.U.M.F. authorizes the current military forays in Iraq and Syria).

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