Ross Douthat premised his Sunday New York Times column on the assumption that President Obama's expected plan to extend deportation protections to millions of undocumented immigrants would be an illegal exercise of executive power. An act of "Caesarism." This seemed all too convenient, I responded, since the details of the plan don't even exist and won't for several weeks.
Douthat has now explained his assumption more fully.
It’s an article of faith among most conservatives that Obama's existing deferred action program for so-called Dreamers (DACA) is itself illegal. Douthat was silent about DACA in his column, but followed up Monday by noting that he, too, believes DACA 1.0 was a (presumably unlawful) “abuse of power.” Which means his original argument wasn’t fallacious. It was just mistaken. Or probably mistaken, anyhow.
I’ll concede to Douthat that if we assume President Obama’s existing deferred action program is illegal, then expanding it by an order of magnitude would be illegal, too—and worse in the same way that murdering 10 people is worse than murdering just one person. But we shouldn't assume that.
Douthat bases his conclusion that DACA is illegal on a simplistic reductio argument: If Obama can announce non-enforcement of immigration laws for a subset of unauthorized immigrants and grant them work permits, then “President Rand Paul [could announce] that, because Congress won’t reform sentencing as he desires, he’s issuing permits to domestic cocaine and heroin dealers exempting them from drug laws and ordering the DEA to only arrest non-citizen smugglers and release any American involved in cartel operations.” That would be absurd and obviously lawless—ergo DACA must be lawless, too. This is presented as a companion to a similar argument, originally put forth Reihan Salam on the National Review's website. But Salam has since deleted that piece. In its place, Salam wrote this post, in which he appears, upon more rigorous inspection, to reluctantly concede DACA's legality. Or at least to play footsie with the idea that DACA is legal.
“The American constitutional order doesn’t rest solely on statutes, or on judicial efforts to restrain the executive branch,” Salam concludes. “It also rests on norms. And the president’s apparent willingness to violate these norms is setting a dangerous precedent.”
You might think DACA is reckless. But that’s a normative judgment, which tells us nothing about its legality.
So let’s flip the assumption. If DACA combines a lawful exercise of prosecutorial discretion with a lawful provision of work permits—and Greg Sargent’s expert sources make a very strong case that it does—then the question for Douthat is, where along the continuum between a million-or-so potential DACA beneficiaries and the (perhaps) five million beneficiaries of an expanded program would it transform into the “lawless” abomination he decried in his column?
The obvious answer to that question is: We can’t say until we see the details. All we know is that Obama is contemplating a program that’s different in degree, not necessarily in kind, from DACA. Which is why my original response to Douthat’s column posited that he had assumed too much. I still contend that he did.
He hasn’t really grappled with that argument, beyond pointing out that it would be absurd to grant drug-use or tax-evasion permits to people. Instead, he focuses on my suggestion that his substantive opposition to deferred action—rather than legal or procedural concerns—is what’s driving his conclusions about its lawlessness.
He’s right that this isn’t much of an argument. But it wasn’t really part of my core argument at all. It was just a sidecar—an inference based on the fact that Douthat made sweeping conclusions about a policy that hasn’t been announced yet, and which might well be legal. If it is legal, then Douthat must retreat to his procedural objection—that, legal or not, protecting up to half the undocumented population from deportation would constitute a dangerous erosion of norms. But if upholding norms is his concern, then he can’t just tiptoe away from the collapsed norms that created the foundation for broad deportation relief. Congress could address the over-reach problem either by passing immigration reform, or by explicitly forbidding programs like DACA. To the dismay of Democrats, Congress won't do the former. To the dismay of Representative Steve King and other House Republicans, Congress won't do the latter, either. But that just means Congress is leaving the matter in the president’s hands. Clearly Douthat would prefer it if Congress tied those hands. But a column urging the Senate to pass Steve King’s plan to end DACA wouldn't have been as tantalizing as one warning that the specter of Caesarism is haunting America.