Executive Power

The Immigration Imbroglio as (Pretty) Normal Separation of Powers

By Jack Goldsmith
Saturday, November 22, 2014, 10:03 AM

It has been instructive during the last six years to watch President Obama and most Democrats evolve from Executive power critics to Executive power apologists, just as it has been instructive to watch many Republicans evolve from Executive power apologists (or quiet fence-sitters) to Executive power critics.  It has also been instructive to watch President Obama’s transformation, in less than three weeks, from an irrelevant lame duck to an overbearing threat to our constitutional order.

The presidency is hugely consequential because the President wields significant control over the massive bureaucracy, has enormous stores of discretionary power to exercise (or not exercise), is by far the most effective-agenda setter in Washington, possesses the veto pen (which we will see more of in the next two years), can interpret the scope of his own powers in the first instance, and remains firmly in charge of foreign policy and war.  Congress has many tools that it can wield in the medium term to fight back.  But even when controlled by the President’s political adversaries it remains reactive and hard to coordinate, it runs nothing, and it always faces a veto threat.

With his immigration initiative, President Obama has used his institutional tools very aggressively and has preyed on Congress’s institutional weakness.  This is his prerogative.  Much of the debate about the immigration initiative has been about its legality.  But legality is not the most important issue here; the administration has made a plausible case for legality in a published legal opinion for all the world to see and criticize.  The important issue, I think is whether the President has, despite precedents from very different political contexts, changed sub-constitutional norms and understandings by effectuating large-scale, deeply contested, self-serving political change with the sweep of a pen.  As David Gergen puts it, it is not the policy or the legality that matters as much as the President’s “abandonment of traditional ways of addressing hard public problems.”  Gergen argues that “Americans have always expected that in addressing big, tough domestic issues, Congress and the president had to work together to find resolution,” especially in non-emergencies, and adds that “[f]or a president to toss aside such deep traditions of governance is a radical, imprudent step.”  (Others across the spectrum have stated the main issue this way.)

We will see if the President’s immigration step proves imprudent or radical – in his last two years or, as my former colleague David Martin says, in the longer term by setting a “dangerous precedent” that opens “the possibility for a Republican president to say, ‘I’m not going to go forward with enforcement’ in a number of areas.”  The precise impact of the President’s initiative will be determined over the medium term by the reactions of the other two branches and the American People in the 2016 elections.  It is not clear to me whether anyone has standing to challenge the President’s immigration initiative in court, though I am sure some will try.  But Congress, despite its relative institutional weaknesses, still has many mechanisms to impact the policy.  Two of its tools – impeachment and a government shutdown – seem off the table for now.  But it has scores of others tools – creative lawmaking that is hard to veto, all sorts of appropriations levers and tricks, hearings and oversight, the subpoena power, appointments vetoes, and the quieter means that congressional committees wield to make Executive life miserable – to push back against an immigration policy that it finds abhorrent.  And of course there is a presidential election in two years that will at least in part be a referendum on the President’s immigration initiative.

The power of courts and Congress and the American People to fight back against an aggressive presidency is more diffuse and takes longer to vindicate than the president’s remarkable power to effect sweeping and hard-to-alter change in an instance.  But this is not unusual under our Constitution.  The framers could not have imagined that the bureaucracy and the president’s authority over it – created by Congress and blessed by courts – would grow so large and consequential in two and a quarter centuries.  Nor could they have imagined the complexity of society that necessitated these changes.  But the framers created a powerful and mostly unitary executive branch on purpose and clearly believed that “Energy in the Executive is a leading character in the definition of good government.”  They just as clearly worried about the excesses of Executive power, and believed that “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”  The President took an aggressive (possibly paradigm-shifting, possibly self-defeating) step this week.  But Congress in the first instance, and the American People (and perhaps the courts) down the road, have the means to resist this step if they have the collective will and so choose.  We will see if they do.