After this, the word “colloquially” should be added to the definition of “Kinsleyan gaffe” — i.e. when a politician accidentally tells the truth … colloquially. That’s what Obama did last week when he shooed away a heckler by casually reassuring him that he had changed the law on immigration — which was true. With Congress unwilling to impeach and the next president unlikely for political reasons to cancel Obama’s order, his amnesty will survive as the de facto law of the land until either conservatives win the White House and a filibuster-proof majority in the Senate or the two parties pass a terrible comprehensive immigration reform bill. If O’s order hadn’t effectively changed the law for millions of people, Latinos wouldn’t be so excited about it. But lackeys like Josh Earnest here and Jeh Johnson can’t say that. They need to spin this as an application of the law, not a change to it, for the simple reason that only in a banana republic does the president actually set broad national policy without the legislature’s approval. And certainly, certainly we don’t live in one of those.
There’s an obvious follow-up question for Earnest that goes unspoken: What about the change made by this order to the way the executive branch operates constitutionally? O’s immigration policy might disappear in time — as noted, a Republican wave might wash it away or a bipartisan deal might supersede it. The fact that Obama’s set this precedent for bold action, though, won’t escape the attention of his successors. So long as the demographics of midterm congressional elections continue to favor the GOP, future Democratic presidents will be eager to exploit executive action to avoid Congress and implement their agenda. And Republican presidents will be tempted by the fact that liberals, in blessing Obama’s power grab, will have no ground to stand on if/when conservatives try one of their own in some other policy area. A change in “the law,” by which we mean statutory law on immigration, is actually the venial sin here. The mortal sin is the change made to constitutional law in blurring the separation of powers. Until Congress figures out a way to challenge the president that won’t blow up in their faces politically, we’re stuck with that one.