Executive Discretion

I doubt that President Obama’s announcement last night that he will legalize millions of illegal immigrants via executive order will do much to mollify Republicans or build bridges towards a more collaborative approach to governing in the next term. I’m sure that two, contrasting views will be offered: that Republicans could never have been mollified anyway and that the president’s action merely confirms that he never had any intention of a more collaborative approach to governing.

The political battle will be waged between an appeal to pity on the one hand and whether the move is within the president’s executive discretion on the other. I look forward to the overnight presidential approval tracking polls which will not be available for a few hours. My prediction is that they’ll not show a great deal of movement one way or another—among Americans who were paying attention the move had already been expected.

If I were the Republicans I’d seek an injunction against any enforcement of the presidential ukase immediately. We’ll soon have an opportunity of learning whether Mr. Dooley’s pronouncement is still right.

Mickey Kaus cautions the president:

With Obama’s executive amnesty imminent, anonymous White House aides are cockily dismissing John Boehner’s threatened lawsuit against it as a stunt. Even among opponents of executive amnesty — and I’m with them — there’s a tendency to pooh pooh the suit. It’s a loser, it will take forever to decide, it’s an attempt to ‘redirect Republican rage’ away from budgetary remedies like denying funding, etc.

Not so fast. I’m all for giving defunding a try — also holding up appointments — but don’t sell the lawsuit short. I’ll even go so far as to lay down an Yglesias style marker: If Obama’s executive action is as broad as described, the Supreme Court will strike it down.

I also don’t believe that the president can count on Senate Democrats to back him to the hilt. He’s probably won his last election. They have (they assume) many more to which they may look forward. I haven’t done a head count yet but I’m guessing there are Senators running for re-election in 2016 who can’t run on the president’s executive order.

10 comments… add one
  • PD Shaw

    I’m not sure Kaus thinks Obama’s action was actually as broad as earlier described. Basically an odd kabuki theater going on which the President announces a policy of non-deportation of the most sympathetic targets, which was probably happening any way. I certainly agree that the executive has enforcement discretion, do people worry about jay-walking in front of a law enforcement officer?

    The policy is supposed to be a case-by-case decision, not a uniform, inflexible rule. Flip back to the feds policy on marijuana, which basically used the idea of enforcement discretion that was selectively utilized. Enter the question of what do people do in the face of regulatory uncertainty? How many of the 5 million will enter this program with knowledge of its limitations and potential recall? Also, the application cost will be high enough so that the program is self-funded and beyond Congressional budget cutting. How expensive will that be?

  • steve

    Devil is in the details, but doesn’t sound like the kind of program they will come flocking to since it is temporary and brings them out of hiding. Just out of curiosity, what kind of reform do you think Obama could propose that the GOP House would accept? It seems to me that they have a total impasse. I can see the House voting for a border fence, but not much beyond that, and I don’t see Obama going for that. I can see Boehner getting through some small bills that would address H-1 visas or something like that if he suspends House rules and passes bills w/o a majority of his own party. However, they will not address anything that even remotely looks like amnesty, i.e. address those already here, which is what Obama wants.


  • CStanley

    What strikes me about this action by Obama is that it’s a big nothing-burger for illegal immigrants.

    Unless I’m missing something! he’s just codifying what has been the de facto policy throughout his administration. He’s announcing that because we can’t afford to deport everyone, there will be a priority list. It’s nice of him to provide the clarity (that should have happened years ago) but at the same time the manner in which he’s announcing it has no real benefit to illegal immigrants and has only a poisoning effect on the politics.

    The benefit he claims to give to the people who “come out of the shadows” is written in disappearing ink, so clearly they will have to weigh the short term benefit against the very likely possibility that they are outing themselves for the time when Congress or the next president acts. And meanwhile, who knows what effect this has on businesses and their employment prospects?

  • PD Shaw

    @steve, the first dispute is between comprehensive reform and piecemeal reform. The Republican House has proposed piecemeal reform, but the objection to piecemeal is that only the most popular pieces get passed, and there is less interest in bargaining for an exchange over what are perceived to be desirable, but less popular, policies.

    I think the importance of “comprehensive” reform is overstated here. I don’t think it like the need for comprehensive healthcare reform, where there is bitter medicine to swallow, such as you cannot improve access without controlling for costs. There is nothing uniting Silicon Valley’s desire for more H1-B visas for hi-tech jobs and migrant workers going back and forth across the Mexican border.

  • steve

    PD- Absent a comprehensive deal you just won’t see anything done on the illegals who are already here.


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