Ah, this brings back memories. Here’s Ezra Klein of Vox writing about one of Obama’s executive amnesties in 2014 in a piece titled, “Why the president becomes more powerful when Congress fails.”
Congressional dysfunction doesn’t justify any particular executive action. But it should worry both liberals and conservatives who fear the steady expansion of the president’s powers. Congress is going to be divided for a long time. Even as demographic changes make it easier for Democrats to win presidential elections, geography and redistricting make it nearly certain Republicans will hold the House well into the next decade. [Oops. — ed.] The result is that this kind of bitterly polarized, utterly ineffective, wildly unpopular Congress is likely to be the norm.
The less Congress is able to do, the more that other power centers in the government will feel they need to do. The system will survive congressional inaction, but it will survive it in part by leaping into the antidemocratic dark.
Klein didn’t offer that as a defense of Obama’s actions. He was speaking descriptively, not prescriptively: Whether it’s good or bad, whether we like it or not, the public will inevitably become more supportive of unilateral executive action in the face of endless gridlock purely for the sake of something getting done by government. Many lefties did endorse that argument prescriptively, though. If Congress won’t do what Obama wants then he gets to do it himself. Everyone agrees that the status of America’s illegal immigrant population needs some sort of resolution, yet Congress has gone year after year after year without mustering the political courage to compromise. Obama finally said “enough” and acted. (“I’ve got a pen and I’ve got a phone,” remember?) If Congress didn’t like his solution they could always overturn it. What’s the problem?
The problem, said tea-party-era Republicans, is that in a democracy major changes to policy are supposed to require broad consensus among the people’s representatives. That consensus can come through branches acting in concert, like when Congress passes a bill and the president signs it, or it can come through Congress achieving an extensive enough consensus within its own ranks that it’s able to override a presidential veto. If you can’t get consensus in one form or another, though, then no action is taken. That’s why there’s no such thing as a presidential “override” of a congressional vote. A proposal lacking consensus lacks democratic legitimacy by extension.
And yet here we are:
President Trump on Wednesday resumed his threat to bypass Congress and fund the construction of a border wall by declaring a national emergency if Democrats maintain their opposition to his funding demands.
“I have the absolute right to do national emergency if I want,” Trump told reporters during a White House pool spray. “My threshold will be if I can’t make a deal with people that are unreasonable.”
That was Obama’s DACA threshold. He couldn’t make a deal with “unreasonable” Republicans so he acted. A lefty tried to convince me on Twitter earlier that the two situations aren’t the same because in the case of DACA it wasn’t a matter of Congress being divided. Congress wasn’t divided; majorities of both caucuses were privately pro-amnesty (which is likely true). Republicans were afraid to pass amnesty due to fear of their base so Obama went ahead and decreed the outcome that Congress secretly preferred, which means he was kinda sorta acting in the name of consensus. But that’s horsesh*t, of course. There’s no reliable way to measure congressional consensus apart from an actual vote. And it’s not somehow “illegitimate” for the party’s rank-and-file to pressure their representatives into opposing a measure which those representatives personally support. That’s … basic accountability in a republican form of government.
Either way, encouraging the president to act unilaterally in cases where he thinks he’s doing what Congress would want is an invitation to all sorts of executive mischief, if not outright autocracy. It would turn the constitutional system on its head: Instead of Congress developing consensus to change a major national policy, it would allow the president to change the policy in an instant and then leave Congress to either ratify it or try to develop a consensus broad enough to overturn it. Which would be extremely difficult in an age of fierce tribal partisanship. The president would effectively rule by decree.
There are only two meaningful differences between Obama then and Trump now. One is that, until literally a week ago, Congress wasn’t divided. Republicans controlled both chambers. This shutdown standoff began, in fact, with Paul Ryan in charge of the House. Those who subscribed to the left’s garbage arguments about Obama’s executive authority in 2014 could at least point at the time to the fact that the House since 2011 was implacably opposed to amnesty for DREAMers. What’s Trump excuse for why he didn’t negotiate harder, and sooner, with the far more “reasonable” Ryan on funding a wall a few months ago? Why didn’t he push McConnell to pass funding via budget reconciliation, which requires only 50 votes? The “gridlock” rationale in Klein’s argument was missing here for two whole years.
The second difference is that Trump, unlike Obama, is invoking national security for his power. The president always gets more leeway legally when a “national emergency” is at stake, which it wasn’t in the case of whether to give DREAMers legal status. But note in the quote how transparent Trump is about the political motive driving his emergency declaration. He’s not seriously claiming that something changed at the border only recently, coincidentally just as Republicans were losing power in the House, to create an “emergency” that now needs to be addressed urgently. He’s claiming emergency power for the same reason Obama claimed “prosecutorial discretion” in amnestizing DREAMers, because Congress is being a pain in his ass and he wants to do what he wants to do without needing their approval. It’s not circumstances at the border that have created the emergency, it’s the fact he ignored funding the wall for two years and then realized belatedly after the midterms that the new people in charge of the House will be “unreasonable” about giving it to him. He’s trying to short-circuit the Constitution’s demand for democratic consensus just like Obama did. He’s simply chosen a more talismanic claim of executive authority by which to do it. And so, five years after Klein’s piece, the partisan stripes on both sides will change on whether that’s appropriate or not.
He also claims here that if he caves on the wall “the first ones that would hit me are my senators.” Huh? Which Republican senators are more gung ho than Trump to have an endless shutdown over the wall? Tom Cotton, maybe. Who else?
President Trump: "I have the absolute right to do national emergency if I want…my threshold will be if I can't make a deal with people that are unreasonable." pic.twitter.com/Xz7Mbws3c9
— CSPAN (@cspan) January 9, 2019