It's not just deportation policy. As I described in a recent feature, Obama has effectively modified or refused to enforce key provisions of laws ranging from the Affordable Care Act to No Child Left Behind. He really has expanded the scope of executive power in some novel ways.
So at a moment when many liberals are cheering Obama for taking action on deportation policy, it's worth considering how future Republican presidents could use these precedents to their own ends. Several commentators have been floating various possibilities about how the GOP could take advantage of those powers in ways Democrats would surely hate. "What if a Republican president announced that he would stop enforcing the payment of estate taxes? Or suspend enforcement of regulations on industrial pollution?" wrote Jonathan Chait.
But as you dig deeper into these scenarios, it comes clear that some of them just wouldn't work — and some of them Republicans supported long before Obama's latest executive actions.
In a recent blog post, South Texas College of Law Professor Josh Blackman laid out a scenario for how a future President Rick Perry could ram through tax cuts. "Going forward, all Americans will be subject to a 17% flat tax," his fictional President Perry says by executive fiat. "Perry" continues by announcing he's "instructed the Department of Justice to defer all prosecutions" for anyone who doesn't pay their full tax bill according to the "old brackets." He makes sure to add that "Congress has not given me enough resources to prosecute all tax offenders" — so he simply has to prioritize.
Like deportation and most other policy initiatives on this list, the refusal of a president to collect taxes doesn't harm anyone. That means it would be very hard to establish a "standing" claim that would get federal courts to take a case on the topic — so it's possible that a president willing to push this could get away with it without the courts stepping in.
Yet Walter Dellinger, who served as solicitor general during the Clinton administration, argues that the example isn't really analogous. "A president can cut back on enforcement of tax laws," he writes at Slate, but "no president can relieve any one American of a statutory obligation to pay taxes. The next president can come collecting—and interest and penalties will be accruing until he or she does."
Now, it does appear to be true that this "President Perry" could pardon every tax offender. An 1866 Supreme Court ruling held, according to Jacob Leibenluft at Slate, that "once an act has been committed, the president can issue a pardon at any time—regardless of whether charges have even been filed." The pardon power, though, is unrelated to Obama's actions here. It was absurdly powerful (but little-used) before he took office, and will remain so after.
So rather than a mass pardon of tax offenders, which would surely evoke public outrage even though it's perfectly constitutional, the more likely route for a future Republican president is a lower-profile reduction of resources devoted to certain enforcement actions — which already happened during the Bush years. As Ezra Klein wrote, "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.'"
2) Environmental laws
At the conservative site The Federalist, attorney Gabriel Malor argued recently that the next Republican president should use Obama's precedents to justify executive action on other issues, and writes: "I particularly favor selective enforcement of the Clean Air Act to relieve the regulatory burden on businesses." In an interview with me, Blackman also suggested that a Republican president could use unilateral action to limit enforcement of, say, fracking laws in Texas.
But action of this sort would face the same problem as tax law non-enforcement. "A general nonenforcement policy in those contexts would leave the violators culpable, and subject to subsequent punishment" for their offenses, writes Marty Lederman, a professor at Georgetown Law and a former Obama Justice Department official. "Their potential fines would accrue every day, and they would remain in danger of being convicted as criminal malefactors."
Additionally, the chances the courts will get involved are somewhat higher with environmental violations, due to the way standing works. "Individuals have private causes of action" that could provide standing for lawsuits, Blackman told me. Plus, states have standing under the Massachusetts v. EPA holding — a 2007 case where a 5-4 Supreme Court ordered Bush's EPA to regulate carbon dioxide as a pollutant after several states sued over his administration's inaction.
But as the Bush experience shows, the courts can have difficulty forcing the administration's hand here. When the Massachusetts v. EPA ruling came down, the Bush administration refused to carry it out anyway — White House officials wouldn't even open an email from the EPA that responded to it.
In a recent paper, Zachary Price, a visiting professor at UC Hastings Law, describes another instance where the Bush administration wouldn't budge after the courts struck down an environmental policy as too lax. Price describes how Bush "promulgated permissive regulations that would have exempted" many modifications to power plants from the Clean Air Act's "New Source Review" requirements — leading to an unfavorable court ruling:
PRICE: "The Administration then exercised prosecutorial discretion to decline enforcement with respect to plant changes that the invalidated rule would have permitted. Indeed, for a year and a half after the court’s ruling, the Environmental Protection Agency evidently maintained an explicit internal policy that the law should be enforced only in accordance with the invalidated rule (even with respect to past violations that the regulation would not have covered)."
Of course, it's always possible that a future administration could push the envelope even further. But it looks like even though the courts are more likely to try to force the administration's hand when it comes to environmental laws, a motivated Republican administration was already able to resist those pressures.
"It's gonna be awesome when a Republican president refuses to enforce Obamacare's regulations," Avik Roy, a former Romney adviser and a senior fellow at the Manhattan Institute, tweeted yesterday. But while it's absolutely true that an unfriendly administration can use executive discretion or non-enforcement to seriously impact the health law — that was always the case.
Indeed, Mitt Romney's campaign platform in 2012 said that on the first day of his administration he'd use executive orders to waive Obamacare's requirements in all 50 states — even though the law didn't actually give him that power. (The waiver power in the law was to kick in in 2017, and could only be used if the states set up a new plan that "covers at least the same number as would be covered in the ACA, includes at least the same benefits and cost sharing protections, and doesn't increase the federal deficit," former Democratic aide John McDonough wrote.)
We'll never know whether Romney would actually have gone through with this. But if he did opt to, that would've taken non-enforcement far, far further than any of the delays and modifications Obama's administration has made to certain provisions of the health law.
And, importantly, if President Romney did this it wouldn't have been because of Obama's executive actions on other topics. He made the promise because many Republican constituencies, and much of the GOP base, were highly motivated to weaken Obamacare. The fact of the matter is that Republicans and their supporters detest the law, and would have already used whatever legal tools they could find to undermine it.
This all goes to show that despite the fears of legal slippery slopes, for most administrations, the key factors they'll consider when they decide how much to "non-enforce" will be political. During the Bush administration, important constituencies wanted limited or unenthusiastic enforcement of tax, environmental, and labor laws — so the administration decided these were worth taking some lumps in the press and in public opinion. A similar calculation was at play here for Obama.
There will certainly be more creative ways future administrations will try to limit enforcement of the law, when it suits them, in ways that are impossible to foresee now. After all, before the Obama administration, who could have possibly predicted that he'd be sued because he chose to delay a provision in his own massive new health law by a year?
But when it comes to the oft-discussed "norms" of politics, it will be extremely hard for future Republican presidents to rhetorically cite Obama's immigration actions as a precedent, when so many in the party have denounced it as a massive and tyrannical overreach. The president needs to present his actions to the country as constitutional and responsible plans to better the country, not as unconstitutional and irresponsible efforts at payback. A lot of partisan acrobatics tend to take place over executive power issues, but this would be an especially bizarre-looking contortion.
Instead, both parties are likely to continue to push ahead with the trend of growing executive authority — carving out new ways for presidents to get what they want when Congress won't cooperate. That trend predated Obama, and it will succeed him, too.