A few months ago, before President Obama delayed his plan to extend deportation protections to more unauthorized immigrants, a group of conservative opinion journalists—New York Times columnist Ross Douthat, most prominently—weighed in on the idea in unequivocal terms.
This would be Caesarism, they declared. A step into the lawless void.
It all sounded incredibly plausible, in no small part because Obama framed his own objective as a response to the fact that Congress hadn't passed a law he wanted Congress to pass. That Obama also insisted, on multiple occasions, that only Congress could solve the deportation problem, further bolstered the right's case.
But it turns out that the laws on the books actually don’t say what you might think they say. Other presidents have discovered this, too. And since nobody wants to write a “maybe I should’ve asked some lawyers first” mea culpa column, they shifted the debate from the terrain of laws to the murkier terrain of political precedent, norms, and procedure.
There are obviously things within the realm of the law that would violate important norms in obvious ways. If purple-state Republicans used their discretion to divvy up electoral votes between presidential candidates in a way that ensured Republicans could regularly win the White House without winning the popular vote, it would be both totally legal and insanely undemocratic.
If Hillary Clinton and Barack Obama had a tacit understanding that he would pardon any of her aides accused of engaging in fraud or campaign finance violations before he left office, it would likewise constitute a huge violation of the norms surrounding the pardon power.
But deferred action doesn’t come anywhere close to crossing the line. The argument against it rests on the notion that Obama’s plan, while plausibly legal, is a huge affront to political norms, because Republicans in Congress and a vociferous segment of the public doesn’t want him to execute it.
A better argument, which Republicans in Congress make, is that Democrats just lost an election—badly—to a ticket of highly restrictionist Republicans, which means Obama is flouting the will of the electorate. Presumably Obama would reply that the GOP is claiming a mandate on the basis of record-low turnout—plus, since when do Republicans respect the will of the voters after they lose an election?—and we’d be right back where we started. But at least conservatives would be pointing to something tangible.
The standard they’re proposing instead is completely capricious and self-serving: That the right's reactive character is an inviolable norm, and that conservative outrage should thus help settle all other normative questions.
If you submit deportation discretion to this standard, then every executive action save for the most trivial will be subject to the “can the conservative movement whip up a shitstorm” test. I appreciate that immigration has become a partisan issue over the past decade and a half, and that it’s maddening to lose a partisan fight by executive fiat. But this issue—and the issue of executive discretion in general—deserves a more rigorous test.
I sketched one out a couple months ago, and still think it suffices pretty well. Is the proposed action illegal or unconstituitonal? This question won’t always have an easy answer, obviously, but it’s striking how much of the conservative punditry on the subject of deferred action has moved on from this basic, threshold question.
The harder part is determining whether a proposed action would genuinely threaten the processes and institutions that make our system of government work (such as it does). I don’t think there’s any way you can reach the conclusion that deferred action poses this kind of threat.
Back in August, New York magazine’s Jonathan Chait proposed a third-tier test.
To imagine how this method might be dangerous, you have to abstract it away from the specific end it advances and consider another administration using similar methods for policies liberals might not like. What if a Republican president announced that he would stop enforcing the payment of estate taxes? Or suspend enforcement of regulations on industrial pollution? Or laws on workplace discrimination against gays and lesbians?
This slightly muddles the issue, as "suspending" law suggests an unlawful action, whereas invoking prosecutorial discretion actually requires continued enforcement of the law. But even if you draw the parallel more precisely, it just goes to show how normal Obama's supposed norm violating executive action really is. Republican presidents can, and will again, avoid enforcing environmental regulations. If Republicans identified a serious legal basis for selectively enforcing the estate tax, they could go ahead and do it. It would infuriate liberals just as weak environmental enforcement infuriates liberals. And it would be incumbent on the norms police to show that the discretion that exists in immigration law also exists in tax law. But it wouldn’t add up to a new method of politics.
What’s new is that Republicans have perfected a strategy of rejectionism with the help of a media amplification infrastructure—Fox News, Drudge, Limbaugh—that the left hasn’t adopted and doesn’t yet enjoy. Rather than simply fight to reverse the policy in Congress and on the campaign trail—as liberals do when Republicans weaken environmental enforcement—the right can also now scream "Caesar!" without reference to any objective standards, and get a full hearing.