Sunday, March 8, 2015

When is executive fiat OK?

Liberals loathed Bush's executive actions. Perhaps the most criticized action was the torture and long-term detention of terrorist prisoners. These were magically rendered 'legal' by the torture memos of John Yoo, Nonetheless, torture and detention with no due process in sight didn't magically become moral.

Now liberals have a version of executive overreach with the temporary amnesty for 5 million illegal immigrants. So, bluntly, here's the question: Is Obama's overreach OK while Bush's was wrong?

It seems like Dems/liberals are lining up to defend Obama, whereas the critics among the Dems are close to mute. A few, such as senators from swing or conservative states, publicly disagreed with Obama for five minutes, and then the issue subsided.

A good enough reason?

I'm very uncomfortable with this approach. On one hand, I want to be compassionate to people who have been in this country for years, working hard and building their lives. On the other hand, when is it OK for the president to make such a big decision unilaterally without the Congress? Aren't we supposed to go through a well-mapped process for such decisions? You know, the process with the bills starting in Congress, getting passed, and landing on the president's desk for a signature or a veto. Without that process, changing the legal status of 5 million people seems to be an arbitrary decision by an impatient president who doesn't respect our governmental system.

Of course I know the argument that Obama gives: All Congress has to do is pick up the mantle (its mantle) and make an immigration reform law. Congress didn't do its duty, so the president decided to go ahead and act.

But here's an important question: what are the limits on presidential action if he doesn't need the Congress to pass laws anymore? If the prez has to wait two years, is that too long, so it's OK for him to do what he wants? Can the prez set the tax rates? Can he change established tax policies, closing loopholes, and maybe opening others?

Obama has carefully addressed these questions. His immigration policy is based on the well-established principle of prosecutorial discretion--the ability of the person enforcing the laws to decide that a case is too weak or too minor to bring to court. Obama has decided that no case against an illegal immigrant with American child warrants prosecution. Beyond that, he's going to give each of these parents a work card.

Do the work

This definitely seems like overreach to me. However, when Obama did the same for illegal immigrants who came here as children, it didn't bother me. This is part of the problem of deciding what is right based on gut feelings. It conveniently bypasses all the hard logic I'd otherwise have to thrash out.

So maybe following my gut feelings are somewhat similar to taking executive actions. Neither follows a good process or well-tested logic. I should not follow my gut feelings on issues of policy, and the president (whoever it is) shouldn't push executive action into new areas. Sometimes, you have to wait, even if it means waiting forever.

So, should Obama simply wait, and not act? Should it be the same for the next president? When has the wait been too long? Maybe there are times when the wait is too long, and immigration reform has certainly been a long time coming.

However, we still haven't exercised the grand old option of chartering a bipartisan committee to thrash this out. We definitely should have one--a recent committee (Simpson-Bowles) was pretty good. Maybe this committee would be good too, but only if it's not led by current politicians (as the Supercommittee was), but by serious, intelligent people who want to figure out what's best for the country as a whole instead of what benefits their party.

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Extras. A libertarian blogger agrees with the legal justifications. Is it his steel-trap mind, or is it convenient reasoning? A law professor on different kinds of rules. I understand this--our legislatures are too large and bogged down to make all the rules we need, or to write all the guidance in how to implement them. However, I still think it's overreach to change immigration all for 5 million people.


Dangerous said...

This is a mistake a that many parties are fashion themselves as "moderate" or in the middle regularly make: false equivalency.

It is hardly the same to compare an executive action to recognize a long-standing reality and take affirmative action to address it, to an executive action to free intelligence services from following the established legal and moral prohibitions to torture.

Further, the scope of the executive action is not the issue, either. Does the president have the authority to do what President Obama did on immigration? You're God-damn right he did.

The president has the Constitution authority to grant pardons and commute sentences. It is not subject to Congressional scrutiny or judicial review. It is not limited to parties that only the president's opposition thinks deserve a pardon, is not limited in scope, and is not limited to just American citizens.

So I'd argue it is not much of a stretch to say the president can order his executive branch prosecutors NOT to pursue deportation of these people given the large number involved, the requirement of due process, and the very limited resources available, and instead set up an orderly method for executive branch administration and -- yes -- amnesty if you want to call it that from laws that this country can not possibly enforce.

Will there be consequences to this policy? Of course, both political and economic, as there are to the current law or anything this or a future Congress might pass. And the voters will get to weigh in on it and perhaps a future president will hesitate before deploying the same power.

But it is a lazy argument or counterargument to lump all executive actions together -- secret and immoral with the realistic and public ones -- to essentially declare that you have to be against all executive actions if you oppose some of them. The problem is not executive orders but what each one does.

But the GOP keeps hollering that Obama's action was "unlawful" as some sort of we're-getting-back-at-you-liberals-for-calling-Bush's-exective-orders-unlawful snip. Some, like the order which authorized tortue, were unlawful. President Obama's order on immigration was fully lawful and an impartial judiciary would so find. I say this because Obama could pardon each of those people individually -- and I'd argue that is what he is doing with the executive order.


ModeratePoli said...


I'm most struck by this statement: "it is a lazy argument or counterargument to lump all executive actions together -- secret and immoral with the realistic and public ones."

Yes, it would be lazy to lump all executive actions together. But which actions you call "immoral" vs "realistic" are the exact opposite of what some conservatives would label them. They could readily call the torture (enhanced interrogation) 'realistic' and the green cards for illegal immigrants 'immoral.'

My point in the comparison was that both Bush and Obama thought their choices were right and justified. They each got legal justification for them. In both cases, they staked out new ground, to the ire of many people. When a president needs that--new arguments to justify policies no predecessor acknowledged doing--maybe the alarm bells should go off. The president may really want to do it, but being hamstrung is sometimes a good thing, keeping you from doing something illegal, morally wrong, or out of the purview of the office.

One other thing, I'm not at all sure that the president can legally excuse an entire class of criminals. I heard something to that effect in some report--that you need to show prosecutorial discretion included the choice to prosecute, not just a blanket no-prosecution policy.

Dangerous said...

I don't give a hoot what conservatives decide is the truth when they simply employ a biased standard or one based on rationalization or wishful thinking. Obama IS justified to recognize that this country cannot and will not deploy the necessary resources to deport the people already here (with or without due process) and that keeping them in legal limbo is humane and counterproductive. If conservatives think that is immoral, then they are the ones with the problem, not me.

On contrast, if conservatives think it's justified to torture individuals to "keep America safe", then that is also there problem since they have no evidence that torture works, generally refuse to call it torture because they know it is immoral and inhumane to do so, and are simply rationalizing a blood lust against enemies.

Can the president legally excuse an entire class of "criminals"? I think he can. In effect, Lincoln did so with the Emancipation Proclamation. He's done so bypassing drug prosecutions in states that have legalized recreational weed. And I'm sure there are hundreds of laws still on the books that impact millions of people that the president, as chief executive, chooses not to enforce. And it's always been this way (think: Prohibition).

So an executive decision to affirmative torture is far different that an executive decision not to affirmatively deport or pursue people simply trying to live their lives, especially when the resources aren't there to do so. What the GOP is REALLY upset about is that some of those people will become citizens and vote for Democrats, or their family members who are citizens will vote for Democrats because of the President's actions. So they make up these false equivalences and get some people (like YOU) who should know better to buy into them. Believe me, when a Republican is president again, it will be open season on executive orders and the GOP will deploy the same argument in their favor because THAT IS WHAT THEY DO.

There's no sense arguing with people with no shame or sense of hypocrisy. If Obama issued an executive order authorizing torture, I'd oppose it and call for his head. If Bush issued an executive order just like Obama's (and he did), I wouldn't have a problem with it. Can you say that about the other side?

ModeratePoli said...

@dangerous, what a double-standard you use. You have such arrogance that your reasons are noble and correct--as though we don't hear that from very questionable people all the time.

We have a certain democratic process to help prevent mistakes and overreach. You're for the process when the overreach is done by Republicans, but not when done by Dems for policies you agree with. You completely ignore that possibility that you could make a mistake. George Bush and Dick Cheney had that same arrogance.

You also ignore that the Dems are making these choices for political expediency. Yes, there are humanitarian aspects too, but the timing is largely driven by political considerations.