But that doesn’t mean it was smart.
In my two previous posts regarding President Obama’s decision to take executive action to defer deportation proceedings against some 5 million undocumented immigrants, I suggested that its impact on his power would be determined by politics – that is, by the public reaction, as expressed through elected officials and mediated by the press. Predictably, in the 48 hours since Obama’s gave his national address, both sides on this issue have enlisted their usual allies in the punditocracy to make their case to the public.
Critics of Obama’s action have generally not attacked him on the merits of his executive action. All seem to agree that immigration policy is broken, needs to be fixed, and thus this is, substantively, a step in the right direction. Instead, they direct their ire at Obama’s apparent willingness to violate some unspoken “norm” that apparently constrained previous presidents from making significant policy change of this magnitude absent an overarching emergency. They note, for example, that previous immigration orders issued by presidents Reagan and George H. W. Bush affected far fewer people, and were designed to clean up existing legislation, rather than to make new law. As Sean Trende puts it, “That is what this really comes down to, at least for me: A substantial violation of norms surrounding executive authority.”
I confess that I’m skeptical that norms alone have deterred previous presidents from seeking to expand their sphere of authority. Instead, it has been fear of blowback from the other governing branches with which the president shares power. And that is how it is supposed to be. As Madison famously wrote in Federalist 51, “But the great security against a gradual concentration of the several powers into each department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others… .The interest of the man must be connected with the constitutional rights of the place.”
If Republicans, and their allies in the punditocracy believe Obama has overreached (and I think there is merit in that argument) the remedy is not referencing a need to restore some long-standing norm of comity and deference. It is for members of Congress to act to defend their constitutional preeminence in the lawmaking process. Presidents seek power because that is how they get things done – and in the process they provide an agenda and thus a focal point to which the legislative branch can react. “The more determinedly Presidents seek power,” wrote presidency scholar Richard Neustadt, “the more he will likely bring vigor to his clerkship. As he does so he contributes to the energy of government.” One cannot stop presidents from seeking to exercise power in pursuit of policy objectives by telling them it is impolite, and that they need to play nice. Instead, when presidents try to usurp too much authority, the proper remedy is to threaten to cut off their allowance and send them to bed without supper.
To be clear, my critique of Obama’s executive action on immigration is not that he has violated some longstanding norm governing relations with Congress – it is that his decision to move unilaterally is likely to provoke a backlash from Congress that in the long run will weaken his effective influence on government, much as happened with FDR and court-packing, Nixon and budget impoundment and Bush II and social security reform. (Interestingly, that backlash may be grounded in part on the claim that Obama’s actions are illegal although, as I’ve previously suggested, legal opinions tend to reflect the underlying political sentiments.) However, I may be wrong in my assessment. As Matthew Beckmann suggests (see his comment here), it may be Obama’s decision will do little to change the strategic calculus guiding congressional Republicans’ relations with the President more generally, which is to compromise when it suits their interests, and to obstruct if that pays greater political dividends. It might also be the case that a divided Republican caucus will be unable to muster the political will to respond because they cannot agree on how to retaliate. At this point it appears that the Republican leadership is weighing their options. Conservatives like Ted Cruz are itching for another showdown over funding, with the possibility of a government shutdown. The Republican leadership, understandably, is looking for a less politically risky means of responding. I suspect both factions are limited in what they can do until they assume majority Senate control in January. But, in the absence of additional evidence (and pushback from you, the reader) I stand by my position that Republicans will seek to retaliate and that therefore Obama’s action – while not breaking any “norms” – is nonetheless potentially counterproductive.