Obama’s Illogic on Executive Lawlessness—and Congress’s Response

Rule of Law by from The Weekly Standard, November 25, 2014

On Sunday, President Obama tried to explain why his decision to violate his duty to faithfully execute the laws on immigration, in plain defiance of the constitutional separation of powers, won’t pave the way for future presidents to do the same on tax laws.  It didn’t go well:

GEORGE STEPHANOPOULOS, THIS WEEK: How do you respond to the argument, a future president comes in, wants lower taxes. Doesn’t happen. Congress won’t do it — he says I’m not going to prosecute those who don’t pay capital gains tax.

PRESIDENT OBAMA: Well, the truth of the matter is, George, that the reason that we have to do prosecutorial discretion in immigration is that we know we are not even close to being able to deal with the folks who have been here a long time. The vast majority of folks understand that they need to pay taxes, and when we conduct an audit, for example, we are selecting those folks who are most likely to be cheating. We’re not going after millions and millions of people who everybody knows are here and were taking advantage of low wages as they’re mowing lawns or cleaning out bedpans, and looking the other way — but then you got politicians suddenly going out there saying, suggesting somehow that we should be deporting all of them. Everybody knows, including Republicans, that we’re not going to deport 11 million people.

STEPHANOPOULOS: So you don’t think it’d be legitimate for a future president to make that argument?

OBAMA: With respect to taxes? Absolutely not. But what is true — what is true today is we don’t audit every single person, but we still expect that people are going to go ahead and follow the law. And we have limited resources, we have to make sure that we prioritize those folks who are most dangerous and we should acknowledge what everybody has already acknowledged through their actions — and Congress acknowledges through their budget — which is we’re not in the business of deporting millions of people or breaking up families.

Obama, however, hasn’t simply said he’ll prioritize deporting certain illegal immigrants over others.  He has lawlessly decreed that roughly 5 million illegal immigrants of his own choosing are now free to stay, and he is in the process of unilaterally issuing them work permits.  He has declared, with respect to these roughly 5 million people, that the immigration laws on the books won’t apply.

This is actually quite similar to a future president (or this one) using the excuse that we cannot enforce tax laws against everyone to declare that 5 million people of his choosing will not have to pay taxes — the tax laws be damned.

In regard to a president doing this on taxes, Obama now says, “Absolutely not.”  But in the third year of his presidency, Obama said absolutely not on immigration — before deciding that “absolutely not” did not apply to him.  Here’s Obama in 2011:

“With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed….[W]e’ve got three branches of government.  Congress passes the law.  The executive branch’s job is to enforce and implement those laws.  And then the judiciary has to interpret the laws.  There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President.”

Our constitutional republic cannot function if the lynchpin role that the president must play in executing the laws is not faithfully performed.  So what should Congress do?

Before the New Year, it should pass a short-term continuing resolution, extending until January, that doesn’t fund the United States Citizenship and Immigration Services, the agency that Obama is relying on to carry out his lawless decree.  Yuval Levin discusses this quite well at NRO:

“[T]he congressional response to this presidential action cannot be nothing.  To begin with, the Congress cannot actively acquiesce in this measure by funding it.  At the very least, when the House passes a funding bill to get the government into next year it should exclude funding for the United States Citizenship and Immigration Services from that bill — as that is the agency that will be primarily responsible for carrying out this order.  The House could then fund that agency through a separate measure that specifically prohibits USCIS from carrying out the president’s directive.  Presumably Senate Democrats (or barring that, the president) would kill that second measure.  But would they kill the first, denying funding to the entire government to protect the small USCIS line item?

“They would have a particularly hard time doing so because USCIS is actually mostly self-funded (through fees paid by the immigrants using its services).  Regular appropriation covers only about 5 percent of its funding in most years (an amount that has hovered around $120 million of annual appropriations in recent years), so the practical effect of a continuing resolution that excluded such funding would be fairly small.  The administration could still work to carry out the president’s directive by moving money around within the agency — prioritizing illegal immigrants even further over those who are following the rules, if they so chose.  But Congress would not be funding the implementation of this order. It simply cannot make itself an accomplice in its own defenestration.

“Some have argued that the fact that USCIS is largely self-funded is a barrier to this kind of move because it means Republicans can’t defund the new directive.  But I think that its being largely fee-funded is an advantage, because it means that even in this Congress, with Democrats still in control of the Senate, there is an opportunity for Republicans to assert some of Congress’s authority and to avoid congressional complicity in this presidential transgression.  It is a move Democrats could probably live with, yet one that sends a clear first message of response in this confrontation the president has initiated.  That’s a good thing.

“That much at least, or something like it, seems simply necessary….”

In addition to denying funding for USCIS, Congress could take aim at Obamacare’s insurer bailout by attaching language to the continuing resolution that prevents that bailout from occurring.

In the meantime, the House of Representatives should formally censure Obama (while abandoning its pathetic effort to sue him) and should pass bills denying USCIS’s ability to collect fees or spend money from fees.  These efforts would presumably die in the lame-duck Senate, but the House should still send these things over and keep up a steady drumbeat.

Then, in January, Congress could pass two bills.  The first bill could fund almost all of the government.  The second bill could prevent USCIS from collecting or spending the fees that provide the bulk of its funding, while that second bill would also provide funding for something (members would have to determine what this is) that Obama really wants to have funded but which the citizenry could happily live without.

In Federalist 51, James Madison wrote that the separation of powers — which (along with federalism) provides one-half of the “double security…to the rights of the people” — would be preserved because each branch of government would zealously defend its turf:  “[T]he 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….Ambition must be made to counteract ambition.”  Far from being weak in its powers of defense, and hence needing to run to the Court to protect it, Congress is the branch that should best be able to defend its constitutional turf.  As Madison wrote, “[I]t is not possible to give to each department an equal power of self-defense.  In republican government, the legislative authority necessarily predominates.”

Congress shouldn’t prove Madison wrong.  This moment is too important for the future of our republic.

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