There are any number of marvelous things one might do as president, if Congress were not such a checked and balanced mess. But future presidents now have a new method at their disposal: Declare a long-running debate to be a national emergency. Challenge Congress, under threat of unilateral executive action, to legislate on the topic before your term runs out. And when lawmakers refuse, act with the most expansive definition of presidential power.
The supporting arguments for this approach come down to the claim that the American political system is broken — incapable of action on urgent matters because of obstructionism, bad faith and the abuse of legislative procedure. It is the political philosophy of “something must be done.”
The arguments against this approach often come down to institutionalism. Major policy shifts, in this view, deserve legislative hearings and an open amendment process. The White House should make its views known and issue veto threats. There should be a negotiation between the House and Senate to reconcile a bill. There should be a presidential signature, or a veto and an override debate. The machinery is admittedly creaky, but it manufactures democratic legitimacy.
President Barack Obama has ably and sequentially defended both these positions. A year ago, during another immigration speech, a heckler insisted, “You have a power to stop deportations.” Obama replied: “Actually, I don’t, and that’s why we’re here. … What you need to know, when I’m speaking as president of the United States and I come to this community, is that if, in fact, I could solve all these problems without passing laws in Congress, then I would do so. But we’re also a nation of laws. That’s part of our tradition. And so the easy way out is to try to yell and pretend like I can do something by violating our laws. And what I’m proposing is the harder path, which is to use our democratic processes to achieve the same goal that you want to achieve.”
Obama has now officially abandoned the harder path — not because the issues surrounding immigration will never be resolved (a case no one has adequately made) but because he wants to be the president to resolve them. Since our democratic process has proved disappointing during his time in office, we get a convenient reinterpretation of tradition — using a history of reasonable discretion in tying up the loose ends of a law to justify a major policy shift in the absence of law. This is motivated reasoning on steroids, and future presidents of both parties are likely to find it appealing, on a variety of issues.
By crossing this particular Rubicon, Obama has given up on politics, which is, from one perspective, understandable. He doesn’t do it well. He has always viewed the political process as sullied, compared with the reasonableness of his policy insights. In the aftermath of his party’s midterm defeat, he diagnosed a problem of salesmanship. “It’s not enough just to build a better mousetrap,” he said. “People don’t automatically come beating to your door. We’ve got to sell it.”
It must come as a relief to Obama that, on immigration at least, he didn’t need to sell it — just provide an explanation after imposing his view. But there is a cost. He has taken an important national discussion and turned it into just another controversial Obama initiative. He has resolved one portion of the immigration debate while poisoning the possibility of broader reform and politically discrediting Republicans who might be open to it.
“The president’s supporters may feel obligated to defend him,” Yuval Levin of National Affairs told me, “but by killing the immigration conversation for the rest of his presidency, he has hurt his allies on this issue most of all. The people who wanted legalization get temporary work permits, the people who wanted more high skill immigration get nothing, the people who wanted a temporary worker program get nothing, the people who wanted more border security get nothing, the people who wanted more workplace enforcement get nothing.”
Whatever your view on immigration (and I support comprehensive reform), Obama’s executive order is a confession of democratic failure, through the adoption of methods that he recently described as exceeding his authority. And it serves the cause of polarization by uniting conservatives — from the Obama-obsessed to reasonable institutionalists — in fervent opposition.
Evidently the harder path was just too hard.
To reach Michael Gerson, send email to firstname.lastname@example.org.