Sean Trende muses over whether President Obama’s executive order on immigration will establish a precedent for future presidential actions:
Most Democrats were apoplectic over the so-called “nuclear option†to end the judicial filibuster, but somehow convinced themselves that Republican use of the filibuster was different enough to warrant the use of the device. Likewise, Republicans who complained about the use of the filibuster for Court of Appeals appointments didn’t think twice when they had the opportunity to use it. Democrats were apoplectic over liberalized use of signing statements by President Bush, yet President Obama often uses the same device.
To make it a bit clearer: Litigants often fight about the creation of precedent, and it is somewhat unseemly to argue one way in one court while simultaneously arguing a different way in a different court. But once you’ve lost the argument, you’ve lost the argument. The precedent is there, and it applies to all parties equally.
President Obama is likely to win this argument on legal grounds. Once he does, there will be nothing to stop a future president from using the precedent for his benefit. There’s simply no unringing this bell, and we’re all likely to regret its having been rung in the near future.
In quick bullet form here are my views on the subject:
- The President’s action was probably legal.
- It was also probably unconstitutional because the empowering legislation allows the president too much discretion.
- What’s a little unconstitutionality among friends?
- It’s likely to encourage more illegal immigration.
- It’s highly popular with some Americans but not a particularly popular move with most Americans.
I would like our immigration policy to move more towards that of Canada, the United Kingdom, or France—other developed countries with which we have much in common. To do that we’ll need to constrain “family reunification” as the bedrock of our immigration policy and be a bit more steely-eyed about it. But it would be very unpopular with some which will make it a hard sell which means it won’t happen regardless of the color of the lapel pin the president wears.
I am not really all that worried about this as a precedent. I think that any and all presidents will push to the limits of what is legal when they feel like they need to do so.
Steve