Via WaPo, it’s now officially a mixed-blessings news day for Jeb Bush fans.
Two issues here. One: Does Obama enjoy more power to craft policy if Congress is deadlocked between the two parties? Ezra Klein says yes, I say no. Two: How far can Obama go in crafting policy in the name of “prosecutorial discretion”? No one disputes that he can prioritize one illegal immigrant’s deportation case over another’s. If he can do that for one person, why can’t he do it systematically for five million? At what point does “prosecutorial discretion” become unconstitutional legislation by presidential diktat?
Judge Arthur Schwab’s arguments will sound familiar, up to and including the hypothetical he offers on income tax rates. Skip to page 18 of the opinion for the section on constitutionality. Here’s the key bit on presidential power:
That last part could be key if this case drifts upward to SCOTUS and, as everyone expects, Boehner and McConnell cave on funding executive amnesty in the meantime. It’s correct, too: The point of separation of powers isn’t to protect each branch from the others, it’s to protect the citizen from government writ large by pitting the branches against each other instead of against the individual (in theory). The fact that Congress might acquiesce in Obama’s power grab on immigration thus shouldn’t spare O from judicial scrutiny since, after all, it’s the public that’s ultimately wronged by it — especially American workers — not Congress. If you want to argue a la Ezra that one branch’s power increases as another grows more impotent, I’d argue that the more executive power increases at the expense of the legislature, logically the more eager the judiciary should be to scrutinize the executive. That’s basic checks and balances — if Congress can’t check the executive, the courts should, something worth bearing in mind when standing inevitably becomes an issue in all this. Should a member of the public have standing to sue O for violating separation of powers even if he/she can’t show a concrete injury from O’s new policy? What would a robust checks-and-balances framework suggest?
As for the second issue, the point when “prosecutorial discretion” becomes legislation, Schwab’s ready for that too:
Is it true that “systematic” guidelines for implementing executive amnesty magically transform O’s action from prosecutorial discretion into unconstitutional legislation? Over at Reason, Ilya Somin says no; if the point of discretion is to let the executive prioritize among pending cases, why should we care if he issues guidelines to help immigration bureaucrats do that? Prioritizing without guidelines would itself lead to arbitrary, inconsistent policy. The flip side of that, though, is that there’s no obvious limiting principle to Obama’s “discretionary” power grabs so long as he’s acting to liberalize the law (a la suspending the employer mandate) rather than applying it, in Somin’s words, to “harass” people. In theory, Obama could refuse to enforce federal law altogether, a fine libertarian outcome but one most people would find inconsistent with his duty to faithfully execute the laws. The question is this: Whom would you rather see punish O for that, the courts or the voters? In theory, there’s already a check on the president in all this — voters can simply express their disgust by refusing to vote for him or his party’s successor next time around. But that means, without a judicial or legislative counter, we’ll have to endure this power grab for two more years with no remedy. Is that tolerable?
Assuming SCOTUS takes this case eventually, I think the discretion/legislation point will end up being decided along vague prudential lines — i.e. the president can use his discretion in individual cases and in classes of cases but not in lots of cases, whatever “lots” ends up meaning. Exit question: Does the GOP Senate’s takeover make it less likely that the Supreme Court will agree to hear this case? After all, it’s not really true that Congress “can’t check the executive,” as I said above. They can by impeaching him or by cutting off funding; if it turns out that Boehner and McConnell don’t have the votes for that, well, that’s just democracy in action. Obviously the public’s trending their way in replacing congressional Democrats with Republicans. Why should the Supremes step in and punish Obama when voters can do it in 2016?