It’s a common meme among the “professional left” that President Obama is just like George W. Bush when it comes to economic and foreign policy. But could that meme, if true, be helpful to the president on two key issues?
There’s already been grumbling on the right and the “pro left” about Obama’s alleged bypassing of Congress and the War Powers Act to accede to NATO’s call for help in Libya. That debate continues (read a rebuttal of the left/right argument against Obama.)
But conservatives are also accusing the president of bypassing the will of Congress (and in their exegesis, the “American people”) when it comes to immigration. From Gateway Pundit’s Jim Hoft:
The US Senate voted down the DREAM Act in December. But, it doesn’t matter. Obama pushed the law through by executive order last week.
Hoft links to (well, he attempts to, since his link is broken) an article by a Phoenix, AZ Conservative Examiner who writes:
The Obama administration memo from the John Morton, Director of I.C.E. (Immigration and Customs Enforcement) directs I.C.E. agents now to use “prosecutorial discretion”with regard to enforcing immigration laws.
Director Morton says that Obama Administration policy directs border patrol agents not to enforce immigration laws: “When ICE favorably exercises prosecutorial discretion, it essentially decides not to assert the full scope of the enforcement authority available to the agency.”
You read that right. According to the Obama administration “favorable” enforcement means NOT enforcing the law!
According to one of the first press reports to break this important story, the new Obama policy is cut and dry: “federal immigration officials do not have to deport illegal aliens if they are enrolledin any type of education program, if their family members have volunteered for U.S. military service, or even if they are pregnant or nursing.”
The story has also been picked up by HotAir and the birther site WorldNutDaily.
The memo, which you can read for yourself here, simply states that ICE agents should take several factors into account when deciding whether and how to use prosecutorial discretion, including the age and circumstances of a person’s entry into the U.S., the person’s pursuit of education, and their or their family’s military service. It is being interpreted by the right as an Obama administration end-run around Congress’ rejection of the DREAM Act, which specifically calls for a path to citizenship for people who were brought illegally to the U.S. as children, who are pursuing higher education, and/or who have served or intend to serve in the U.S. military. The question is, does the executive branch have sufficient discretion over the spending of congressionally allocated resources to prioritize detaining and deporting, say, violent illegal immigrants versus illegal immigrants who are students, soldiers, or Pulitzer Prize-winning journalists, based on the limited resources available.
In another question of how far Obama can push executive discretion without hitting a constitutional firewall, The New Republic’s Matthew Zeitlin alarms the Hot Airians by floating the idea that if Republicans in Congress continue to play politics with the debt ceiling, risking the full faith and credit of the United States, the president might just be able to ignore them, and keep paying our debts:
… barring a timely resolution to the standoff, could President Obama simply ignore the debt ceiling and keep making good on the country’s obligations? As the deadline grows nearer, the question has been popping up on law blogs and other forums, and according to a number of legal experts with whom I spoke, the answer, surprisingly, appears to be yes—and it is conservative justices who have played the biggest role in making it possible.
When it comes to Congress’s ability to stop the Obama administration from ignoring the debt ceiling, legal experts note that the first obstacle standing in its way is the question of standing, or whether a certain party has the right to sue over an issue in the first place. Jonathan Zasloff, a professor at the UCLA School of Law who has discussed this idea on a blog that he writes with several other academics, told me that while an order from the president for the Treasury Department to continue issuing new debt sounded extreme, it was unclear who could prove sufficient injury from the decision that would qualify the person to sue the administration in court. “Who has some kind of particularized injury, in fact?” Zasloff asked, and he could not come up with a satisfying answer.
Part of the reason for Zasloff’s difficulty in identifying an appropriate plaintiff is that members of Congress have tried before to sue the president for diminishing their legislative and appropriating power and have typically failed. In 1997, for instance, a small group of congressmen sued Office of Management and Budget director Franklin Raines, arguing that the 1996 Line Item Veto Act diluted their voting power as members of Congress. But seven justices of the Supreme Court disagreed, and did so largely by drawing from an earlier opinion written by Justice Antonin Scalia that denied environmental groups standing to challenge the government’s interpretation of the Endangered Species Act. In the majority opinion, then-Chief Justice William Rehnquist wrote that because the congressmen had not shown that their injury was “particularized,” and that the action of the President had not affected the congressmen in a “personal and individual way,” they did not have standing to sue.
Beyond whether Congress could muster a credible plaintiff to get standing to sue the president should he simply ignore them and keep issuing treasury bonds to pay America’s obligations (the article states that perhaps the only credible plaintiff would be one Americans would hardly side with: people who bought credit default swaps that would pay off in the event of a default); Zeitlin finds a second potential reason Obama could simply “pull a Dubya” and ignore Congress (as liberals often mistakenly, but in the case of things like signing statements and funding wars through emergency supplementals, rather than in the budget, believe Bush did):
But even if standing could be established and the Obama administration gets taken to court, some legal experts note that an additional argument of surprising strength could be made: The government cannot legally default on its debts. Former Reagan official and maverick conservative budget wonk Bruce Bartlett has suggested as much by invoking Section Four of the Fourteenth Amendment, which says that “The validity of the public debt of the United States, authorized by law … shall not be questioned.” Although there has been little litigation or discussion of this section, it could be read to imply an absolute firewall against statutory limits on paying or devaluing the debt.
Garrett Epps, a legal journalist and professor at University of Baltimore School of Law, has made an even broader argument in a pair of articles for The Atlantic’s website. In an interview, Epps told me that there was a strong argument that the debt ceiling is unconstitutional because it exceeds the legislative branch’s power of the purse. The argument goes like this: Because Congress already appropriated the funds in question, it is the executive branch’s duty to enact those appropriations. The debt ceiling, then, is legislative “double-counting,” because the executive branch is obligated to spend the money Congress appropriates, without having to go back and ask again for permission.
Of course, for the Obama administration to win such a case if one did materialize and make it to the Supreme Court, you’d have to believe that the conservative justices would stand by their own precedents, and not flip sides based on it being the Obama, rather than a Republican administration. For me, that’s a big leap, particularly when it comes to the most partisan Justices: Thomas and Scalia. But at least some legal scholars have faith that the conservative justices would be consistent, and the Obama administration would win such a challenge.
Using executive power to help soften immigration enforcement against the very people the DREAM Act would help is certainly a winning strategy when it comes to the important Hispanic electorate. And using presidential authority to make sure seniors get their Social Security checks and that Wall Street doesn’t crash would be smart strategy heading in 2012, since the White House could simultaneously dump on Republicans for being irresponsible by refusing to pay America’s bills. So politically, these two instances of what the right is calling overreach would be good things for the White House. Even a showdown with the right wing Supreme Court would be good politics.
What’s ironic, though, is that members of the pro left often criticize the president for not bullying Congress enough, and not being aggressive enough in exactly exactly what he wants from the legislative branch. At the same time, this same group complains that Obama is too much like Bush when it comes to war policy. If in these two instances, Obama were to “pull a Bush” and bypass Congress on the DREAM Act and the debt ceiling, would the far left be for it, or against it? (We already know the right will be against anything Obama does, no matter how consistent that position might be when stacked against their complete support for “all things Dubya.” But on the left, the potential cognitive dissonance is enough to give you a headache.