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The best arguments for, and against, Obama's executive action on immigration

What's notable about President Obama's coming executive action on immigration isn't how divisive it is — pretty much everything Obama does these days, up to and including saluting the troops while drinking tea, is divisive — but how intense the divisions are.

On the left, you have the immigration-reform community, which casually refers to Obama as the "deporter-in-chief". The president, they say, swore to pass immigration reform by the end of his first term. He failed — and, while failing, he ramped up the pace of deportations. That's not seen as simply a promise unfulfilled; it's a betrayal. The anger is real, and palpable.

On the right, the belief is that Obama is running a lawless, unconstitutional presidency — and that this latest affront would, in a sane system, be an impeachable offense. Ross Douthat, typically among the most sober and levelheaded conservative commentators, calls it "a leap into the antidemocratic dark". There is fear here, and it isn't all feigned.

Let's go through the arguments.

For: The president clearly has the power

At this point, fairly few people, even on the right, are arguing that Obama doesn't have the power to exempt broad classes of people from deportation. President George H.W. Bush granted about 1.4 million unauthorized immigrantsa blanket deferral from deportation — that was about 40 percent of America's unauthorized population, a number similar to what Obama is considering now. And it's not just Bush: a variety of other presidents have used this power in a variety of other ways.

"Immigration law is an area in which — for good or ill — Congress has given the executive wide latitude," writes legal scholar Jonathan Adler, one of the key conservative thinkers behind the ongoing lawsuit against the Affordable Care Act.

Moreover, if Congress doesn't want the president to act, it has a clear remedy. Just as Congress could pass an immigration law but hasn't, Congress could pass a law stripping the president of his power to make these decisions. But it hasn't done that.

Congress's refusal to pass an immigration-reform law is often framed as a choice: the body has chosen not to pass an immigration-reform law, it has chosen the status quo over change. But then this, too, is a choice: Congress has chosen not to strip Obama of these powers, even though it has known for months that he intends to use them in a sweeping way.

Against: The president might have the power — but that doesn't mean he should use it

"The executive branch is effectively acting in direct defiance of the electoral process," writes Ross Douthat. "This is where the administration has entered extraordinarily brazen territory."

This is an argument, fuzzy but deeply-felt, about norms of governance. Obama, critics say, may not be breaking the law, but he's breaking the informal rules that bound Washington. He is using executive authority granted to him by Congress as a way to ignore Congress entirely. And he is doing all this after decisively, overwhelmingly, losing an election — so there isn't even a wisp of democratic legitimacy to the action, as there might have been if Obama had acted before the midterm. H.W. Bush's action, though structurally similar, was not so clearly in defiance of Congress and a recent election.

This lament often takes the form of a threat. Yuval Levin encourages Democrats to imagine a Republican president who finds his tax cut stymied in Congress and so simply announces that he "will not enforce any legal penalties against people in the 35 percent bracket who only pay a 25 percent tax on their incomes, people in the 25 percent bracket who only pay 15 percent, and so on."

immigration child flag

Jewel Samad/AFP/Getty

For: It's sensible and humane

The backdrop to this debate is 11 million unauthorized immigrants live in the United States right now. They work, raise families, pay taxes, start businesses, contribute to their communities — and live under constant, unrelenting fear of deportation.

If it was US policy to deport all these people, that might be brutal, but it would at least be consistent. But it isn't US policy to deport all these people. Congress does not authorize the money or the resources to deport all of them. Rather, Congress only provides the money to deport around 400,000 unauthorized immigrants each year. But 400,000 isn't 11 million. Choices must be made. And Congress gave the president the power to make those choices. (Greg Sargent has a good piece on these numbers, and the legal theories at play on this point.)

What's needed here is a real, comprehensive solution — something like the immigration reform bill the Senate passed in June 2013. But absent a real solution, the path forward is obvious: the US government should focus its resources, release clear guidance on who law enforcement agencies should target, and tell the immigrants who aren't a deportation priority that they can relax, find legal jobs, and live their lives — at least for now.

Against: The constant, unrelenting fear of deportation is the point

Obama's plan "invites new surges of illegal immigration," writes David Frum. The argument here is that the constant, unrelenting fear of deportation is part of the punishment for immigration and living in the US illegally. It might be unwise for the US to to expend the resources necessary to find and deport all 11 million unauthorized immigrants, but it's foolhardy for the US to free them from the threat of deportation — that would simply reward their decision to enter the country in violation of its laws, and send a worrying signal to others thinking about following their lead.

While it was seen as a gaffe at the time, this is the heart of Mitt Romney's "self-deportation" idea: he was arguing that living as an unauthorized immigrant in the US should be such a tenuous, unpleasant existence that people leave of their own volition rather than requiring the government to deport them. This is an idea with a lot of support in the conservative world, and Obama's executive action is a direct rejection of it.

capitol cones

Mark Wilson/Getty Images

For: Congress is broken, and that means the president must do more

Few disagree at this point that Congress is increasingly dysfunctional and paralyzed — and is likely to remain that way for some time. The question, then, is this: is it helpful or harmful for the president to respond to a structural decrease in congressional action with a structural increase in executive action?

This is, arguably, one way the system can adjust to gridlock: if Congress does less, the executive will have to do more. Perhaps a gridlocked legislature makes a more powerful executive necessary. Maybe Obama's actions are healthy for the system. Maybe it's a necessary adaptation to gridlock.

"We are operating in what amounts to a parliamentary system without majority rule, a formula for futility," wrote Ron Brownstein in 2010. Perhaps this is a way American politics becomes a little more parliamentary. Congress can, in both this case and most of the hypothetical cases, remove the president's authority to act unilaterally. But insofar as it doesn't, we're creating a system where, in many cases, the tie goes to the executive — and then the electorate can judge the executive based on his actions.

A related argument is that this might help break congressional gridlock. As the executive branch begins to do more, members of Congress will want to recapture their rightful role as the engine of federal action — and they will decide that compromise is less painful than irrelevance.

This is, clearly, what Obama hopes will happen. He has continually called on Congress to preempt his action on immigration by passing a law of their own. It won’t happen this time — the injustice feels too raw to Republicans, and Obama’s demand sounds too much like blackmail — but it might eventually happen if Congress recognizes that its dysfunction is leading to an ongoing deterioration in its power.

Against: This could turn paralysis into crisis

In some ways, the precedents and the legality are beside the point — Republicans really do believe that Obama would be ushering in a new norm of unchecked executive power. The response would either be brinksmanship now, reprisal later, or perhaps both. "The Democrats are fighting dirty, which means this is no time for Marquess of Queensberry rules," writes Gabriel Malor, a conservative pundit.

So while this might be one way the system manages the consequences of extended gridlock, it might also be a way that gridlock becomes a genuine constitutional crisis. Routine high-stakes showdowns between the executive and the opposing party in Congress could lead to frequent government shutdowns, impeachment proceedings, and perhaps even a breach of the debt ceiling.

Moreover, a more powerful president might mean a more irresponsible Congress — that, arguably, is what’s happened on national security, where Congress long ago gave much of its power to the executive, and has never seemed particularly interested in getting it back.

Ross Douthat, for once, recognizes the structural case for this action — but nevertheless counsels against it. "Presidential systems like ours have a long record, especially in Latin America, of producing standoffs between executive and legislative branches, which tends to make executive power grabs more likely. In the United States this tendency has been less dangerous — our imperial presidency has grown on us gradually; the worst overreaches have often been rolled back. But we do seem to be in an era whose various forces — our open-ended post-9/11 wars, the ideological uniformity of the parties — are making a kind of creeping caudillismo more likely. But if that evil must come, woe to the president who chooses it."

immigration protestor

SAUL LOEB/AFP/Getty Images

Where do I fall?

I've tried, in this piece, to present the arguments for and against Obama's possible executive action as fairly as I could. But it seems like a dodge to end without saying where I'm leaning.

President Obama appears to have the legal authority to make this move. And I'm unconvinced by the cries that he must tailor his agenda because of an election where he wasn't even on the ballot. Where were these voices when Republicans responded to the 2008 election with a relentless campaign of obstruction against the stimulus, the Affordable Care Act, and Dodd-Frank? Where were they after the 2012 election? The judgment of the electorate cannot be binding on one party but not the other. On this, the recent political norm is clear: parties are free to pursue their agendas even after poor showings in national elections.

Similarly, while I think the logic of keeping unauthorized immigrants in a constant state of terror is sound, I also think it's cruel and counterproductive. These are people who live here, work here, pay taxes here, and raise families here. And, to repeat, these are people. If we are not going to deport them we should stop pretending otherwise. Helping them out of the shadows would be good for the economy, good for the country, and good for them. It's the right thing to do. And while it should be done through a law giving them a path to citizenship, it is better done through executive action than not at all.

Where I struggle is with the final pair of arguments. I think Democrats underestimate how much Obama has already done to expand executive power. And while I do think party polarization and the resulting structural gridlock are a deep problem for the nation, that doesn't mean that the majority party can't respond in ways that will create worse crises. I feel much more comfortable with the Senate abolishing the filibuster than with the president becoming routinely creative with executive authority.

I've seen people quoting the old Nixon line, "When the president does it, that means that it's not illegal." But that's not the problem here. The real issue is that just because it's legal doesn't make it wise.

The other side of the argument, though, is that this is a crisis that is, in part, about the GOP's response. When President George H.W. Bush did something similar, Democrats didn't go to war. And it isn't obvious to me that the way the system should work is gridlock in Congress and, where gridlock is not sufficiently effective at pouring cement into the gears of government, threats of crisis and reprisal if the president uses the authority he (or she) possesses. At some point, extended paralysis — enforced by the threat of manufactured disaster — becomes its own crisis.

Nor are the threats of reprisal — many of which focus on tax and environmental policy — so convincing. President George W. Bush cut the number of IRS agents auditing estate tax abuses. One estate tax lawyer described the action to the New York Times as a "back-door way for the Bush administration to achieve what it cannot get from Congress, which is repeal of the estate tax." At another point, the Bush administration evaded responsibility for regulating carbon emissions by refusing to open a legally important e-mail. That's not to say future Republicans presidents can't be more brazen, or come up with ways to go further — but who's to say they won't do it anyway?

I don't think this is an easy decision. It requires judgment calls on not just the policy and the underlying laws Obama is citing, but on the political system's likely response to Obama's actions. At the beginning of this section, I said I would make clear where I'm leaning, and leaning really is the right word. Three days a week I lean towards the policy. Four days a week I lean against it. I'm hoping, as the specifics of the policy are rolled out over the next few days, to see or hear something that makes this a clearer call.

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