President Obama, brandishing the same chainsaw as his predecessors, continues to clear-cut limits on executive power. Obama has been a one-man legislature when it comes to reshaping the Affordable Care Act into something less dysfunctional than the law he signed in 2010, and now he presumes to rewrite immigration law from the Oval Office.
Obama on Thursday night plans to announce an amnesty for about 5 million immigrants in the U.S. illegally. His order is based on no statutory authority, but is instead an expansion of the idea of “prosecutorial discretion” — the notion that federal government can’t catch all scofflaws, and so it must set priorities.
Republicans, and even much of the mainstream media, have sniffed out Obama’s likely true motives here, and they are nakedly political.
Obama is, above all, trying to provoke the GOP with his executive amnesty. He knows that his Caesarism infuriates the Right. He remembers how the 1998 Republican impeachment of Bill Clinton hurt the GOP and helped Democrats.
Liberal writers are salivating over the possibility of a government shutdown spurred by the immigration order. The government is currently funded through Dec. 11, and many conservatives want any new continuing resolution to include a provision blocking Obama’s actions. The Senate, of course, would reject such a CR, and Republicans would have another shutdown hung around their necks.
Obama would love a GOP overreaction like that, especially because his allies in the media would solemnly explain that conservative objections to Obama’s overreach are nothing more than racist gripes by old white men who can’t accept a black president.
Also, a Republican reaction to Obama’s amnesty would give Democrats a chance to argue that the GOP hates Hispanics. Democrats tend to paint all GOP policy positions as bigotry against someone — women, black people, immigrants. On immigration, Republicans sometimes provide an assist by behaving as if they really do dislike Mexicans.
If Obama can provoke just one back-bench GOP congressman — or even a conservative talk-radio host — into saying something racially charged, his order will have been a success. The media will make every Republican politician answer for the comment. (Democrats, in contrast, are never forced to answer for the outrageous statements or actions by their party-mates, even the man they keep electing to lead them in the Senate.)
If there remains any doubt Obama’s action was about partisan positioning, look at which senators he invited to the White House to finalize this plan. Eight senators — including four Democrats — represent states on the Mexican border. None of them were invited. If you look at the three states with the most Hispanics — measured by percentage or raw numbers — Obama invited zero senators from those states.
The last four chairmen of the Democratic Senatorial Campaign Committee — that is, the top fundraisers for Senate Democrats — are all invited: Michael Bennet, Patty Murray, Bob Menendez and Chuck Schumer. The other invitees include top party leaders Dick Durbin and Harry Reid. This is about Democrats’ efforts to retake the Senate in 2016.
Of course, Obama and some of his allies in the media will claim that Obama has the right to act unilaterally. The strangest justification may be that the GOP-run House refuses to act. Rep. Luis Gutierrez, D-Ill., said Obama’s action was prudent “given the intransigence of the Republicans.”
Another word for “intransigence,” is “disagreement.” This argument boils down to this: Because voters, in three straight elections, have elected a Republican House majority and have now chosen a Republican Senate, the president ought to unilaterally create the laws that Republicans oppose.
This reasoning is perverse. It’s not merely undemocratic, it’s anti-democratic.
At the New Republic, writer Danny Vinik hung Obama’s authority on a different hook. Obama wasn’t really making his own law, Vinik argued, he was merely carrying out a standing congressional mandate of “making the immigration system fairer….”
This, like many of Obama’s legal arguments, is a justification with no limiting principle.
Imagine a Republican president in 2015 failing to pass through a Democratic Senate a tax holiday for U.S. companies repatriating their foreign earnings. Invoking the notion of “selective enforcement,” President Christie could then play the fairness card: “I’m simply executing Congress’s mandate that the corporate tax code be fair, and declining to collect some taxes from these companies.”
Is it fair to force people to buy private health insurance they don’t want? It is fair to tax the son who inherits his dad’s family business? Is it fair to require nuns to provide contraception insurance? Just wave that magic fairness wand, invoke selective enforcement, and voila, the law says something other than what it says.
This wouldn’t be a very functional government, but it is the one Obama is threatening to create.
Timothy P. Carney, The Washington Examiner’s senior political columnist, can be contacted at [email protected]. His column appears Sunday and Wednesday on washingtonexaminer.com.
