Up for debate: could Obama ‘pull a Bush’ on debt ceiling, DREAM Act?

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.


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14 Responses to Up for debate: could Obama ‘pull a Bush’ on debt ceiling, DREAM Act?

  1. Wow, interesting scenario. It may actually come to that since the Republicans would rather sell off Iraq / Afghanistan veterans’ prosthetic limbs than raise the Koch Bros. taxes one nickel.

    PS: Hoft can’t help boogering up links; he lacks opposable thumbs.

  2. I had read all of the items you cite in your post previously, earlier, from other sources, but never thought of it in terms of ‘Obama pulling a Bush’ until you mentioned it.

    I look at stories and try to judge them on their merits, like whether the facts and the narrative make sense, etc. rather than applying the overarching (but narrow) political framework that you, and your opponents on the ‘professional left’ and (though you never refer to them as such) the ‘professional right’ tend to do.

    I would guess that you are in favor of reelecting President Obama. If that’s the case, why do you continue to insult those on the left so regularly in your column? To my mind this accomplishes little, except to promote the same kind of divisiveness that you accuse your adversaries of. I’m asking this as a serious question.

    I just don’t see the efficacy of reviling the left wing of the Democratic Party in so public a way if the goal is to reelect the President. Let’s take an extreme example: do you think that Rahm Emanuel’s very public disrespecting of the progressive wing was actually good for the party?

  3. JReid says:

    Stephen –
    You spend a lot of time on this blog beating up on President Obama and beating up on me for not sufficiently beating up on President Obama. But you find ME divisive? Interesting. Perhaps I’d seem less divisive if, say, I spent more time beating up on President Obama…

  4. Rupert says:

    Please, Stephen and the”left,” get over the Rahm Emmanual thing. Did it really hurt that much?? I see more abuse of Obama and his supporters on sites such as FDL than Rahm, who basically made one unfortunate statement, ever imposed on the left.

    Was the Dream Act really “voted down” in the Senate or was it filibustered in the Senate?? The left encouraged Obama to use Executive Orders on many issues, and one reason why was to circumnavigate the excessive use, or abuse, of the filibuster by the Republicans in the Senate.

    Dems are supposed to be wimps; shame on the President for exercising his authority.

  5. bmull says:

    Well, yeah. My opinion of Congress is so low that I think we’d all be better off if Obama just became King. But unless you’re prepared to move forward with that now, you want to try to preserve and strengthen the system of checks and balances. Because there’s every chance Bachmann could win.

  6. Flo says:

    Hah… Bachmann as King? Maybe “a chance” not “every chance.” And you could forget checks and balances, with her we’d be a theocracy.

    But for what it’s worth there is still a judicial branch for balances, though I think some of them get checks from the Koch brothers.

  7. hilda banks says:

    You go, Joy, for responding to that idiot. The left is more rabid than the right when it comes to criticizing our President. If he has to do what he has to do then he should do it. These people and by these people, I mean liberals/progressives. I hate those two words and I am a strong Dem but the foolishness some of these “so called” folks have exhibited makes me sick.

  8. Joy, can you find one instance of me beating up on President Obama? Just one?

    And I really was seriously asking the question: is it not divisive, all of these insults? I can appreciate policy differences, but those on both the left and the center spending their time calling each other idiots and Obamabots just seems counterproductive.

    I’ve said so in many places.

  9. Kerry Reid says:

    Stephen, though I certainly don’t defend Emanuel’s use of “retarded” as an epithet, the canard that he was describing the entire progressive- left wing of the Democratic party and all activists as such is just that: a canard. He was referring very specifically (and in a closed-door meeting, by the way) to a group of activists who planned to take out attack ads (Oooh! How divisive!) against Dems (primarily Blue Dogs in conservative states and districts) in Congress who were viewed as insufficiently left-wing on healthcare reform and other items — Dems whose votes Emanuel knew the administration would need on Fin Reg and a host of other critical issues.

    It would be easier to discuss what is and isn’t counterproductive in our discourse if some on the Disgruntled Left could stop habitually lying about the particulars in this incident as part of their Grand Overarching Narrative of How Rahmbama Done Them Wrong.

  10. malagodi says:

    Well thanks, I appreciate the civil response.

    I used Rahm, as I said, as an example. And it’s quite true that a lot of the ‘professionals’ make their living trashing the President, and their comment posters make it really personal and offensive. It’s positioning and branding. It’s how the business works, not with quality, but with identity marketing. I quit reading FDL, not because I didn’t find some of their pieces interesting and useful, but because I couldn’t stand the posturing.

    I would also say that taking out ads against Blue Dogs, and especially to primary them is not so bad. It is a political move against elected officials that you want gone.

    But that’s different in this case where the hoped-for goal (I assume) is the reelection of the President, and maybe some kind of small miracle in Tallahassee, in which every vote, every vote is needed. To have an otherwise good piece of reporting spoiled, or tainted, or soiled, I can’t quite find the right word, by what seems to me to be completely useless and unnecessary swipes and sometimes outright insults at people who probably will be at least likely to vote is a shame, and I think, unhelpful. And the disgruntled are going to be disgruntled. Most will probably stay that way, but none will be converted with slander.

    That’s all. And I think it hurts the brand, but that’s Joy’s business.

    Shortly after the last interactions here, where I was misrepresented as an Obama-basher, without any evidence, and called an idiot, for which there may be some evidence lying around, I came across a Newsweek (I think) piece about Obama’s situation here in Florida, about messaging problems, about connecting with ‘the base’ problems and about hope for victory largely resting on Rick Scott continuing to be a dick. That’s not me making stuff up or shouting the ‘not a dimes bit of difference’ nonsense. That’s about getting every vote and every voter, whether they agree with you on stuff or not, whether they’re disgruntled or not. And I want every vote against these SOBs in Tallahassee, whether they vote for Obama or not.

  11. Kerry Reid says:

    Well, except the problem with attacking Blue Dogs from within the party is that they mostly represent states where the choice isn’t between a Blue Dog holding a seat and a crucial vote for legislation, or a more liberal Dem. It’s a choice between a Blue Dog who will vote with you most of the time (but demand compromises unpalatable to the left) or a Republican who will obstruct everything. I honestly don’t know what sticks and carrots would work with Ben Nelson. He gets tons of corporate funding, his voters don’t like Obama (who only carried one electoral vote in Omaha, IIRC), and there is nobody to the left of Nelson who could win statewide, so he holds all the cards. If Obama and the Dem caucus “demonize” him, he can always turn that around to be “They hate me because I’m the sensible guy standing up for ‘moderate’ values against these wild-eyed liberals.” And he’d probably come out looking better than the rest of the Dem caucus in that scenario.

    I hold no brief for Blanche Lincoln, but her vote was still needed for Fin Reg when she was being primaried — and it’s not as if Bill Halter, who never endorsed EFCA for starters (probably a prudent move for somebody seeking support in Walmart Central — Arkansas) was a big flaming liberal. And those who did have that flaming-liberal burnish — Alan Grayson and Russ Feingold (though let us always remember that Feingold was against bringing the tax cuts to the floor before the midterms and against the funding to close Gitmo) lost their seats.

    The larger problem that I see for all Dems, not just Obama, is that they represent the party that is still interested in governing. And good governing is tough. It involves compromises in order to keep things together for the greater good and a lot of things that don’t fit on bumper stickers.

    The GOP loves to gain power, but they have no idea how to effectively administer anything once they gain it. (Look at how well FEMA operated under Clinton and now under Obama, and compare it to Bush, for one tragic example.) Unfortunately, it’s difficult to do snappy branding around “We did what government is supposed to do and kept things from getting as bad as they could have been.” But that, in fact, is what has happened with Obama.

    So I guess my feeling about the “professional left” (and I define them as anyone who makes a living off their commentary in the blogosphere and gets face time on MSNBC, etc. — usually by agreeing to be the Useful Idiot who will play the “Bash the President from the ‘Progressive’ Side” role) is that if they truly think Obama and the Dems are losing the messaging game — then step up and HELP THEM!

    How many liberal Dems were at townhalls talking about the public option vs. Tea Party death panel hysteria-mongerers? The only emails I got asking me to show up at townhalls were from OFA. Not from “Bold Progressives,” who decided that the best use of energy they could find close to the most crucial midterms of my lifetime was sending around a petition pouting about how they would never, ever support that meanie Rahm Emanuel for any other public office, so there. (I’m sure the new Mayor of Chicago was deeply wounded by that empty symbolic gesture as he swept to landslide victory.)

    In other words — I see a lot of people on the aggrieved left demanding that Obama do what they say — but they don’t actually DO a lot themselves to warrant faith in their notions of strategy and vision. (Again — expending energy against Dems who might vote with you, rather than against GOPers who will DEFINITELY try to destroy every vestige of progressivism, is to me a failure to understand the pragmatic necessities behind getting legislation passed.)

    I agree that there is a lot of discomfort and disquiet out there in the electorate with this horrible economy. I don’t think Obama has been perfect on selling his agenda — he should’ve come out swinging on the death panel stuff sooner himself. But I see my job as filling in the gaps, working in local and state races where maybe I can make a difference, etc. And from where I sit, I don’t see that same urgency or energy coming form the “progressives” who make hating Obama their raison de etre.

    Sorry to go on so long. I think about this stuff a lot, obviously.

  12. When you start to ignore institutional laws that govern the U.S., the country starts to fall apart. It’s a slippery slope. Respect the laws or all will be lost.

  13. malagodis says:

    “the problem with attacking Blue Dogs from within the party is that they mostly represent … ”
    I thought that’s what primaries were for, to see who actually represents who. Otherwise there is no point in participating in party politics except as an apparatchik.

    “Again — expending energy against Dems who might vote with you, rather than against GOPers who will DEFINITELY try to destroy every vestige of progressivism, is to me a failure to understand the pragmatic necessities  …”
    You make my point.

    “And from where I sit, I don’t see that same urgency or energy coming form the “progressives”…”

    Have you sat in any grassroots Dem Party meetings or phone banks lately? I have. To my surprise, there are folks there who, if you listen to them, you would have to put them squarely in the ‘progressive’ camp. They sit next to the other Democrats who can repeat the party line verbatim. They work together.

    I think the people you are actually talking about are those who make their living as media figures and who must, by the very nature of their livelihood, bluster and propound some measure of bullshit. They have the camera, the microphone and the megaphone, and it can be very annoying and counterproductive. But this is not limited to the left. Those who appear on MSNBC, CNN, Fox, and even the local NPR affiliate are all professionals; they make their living by staking out a clear market position and sticking to it no matter what.

    Sorry to go on, we’ve thrashed this out pretty good. But as you can see, I think about this stuff a lot. Sometimes I act on it too.

  14. Pingback: Re-racked: Could President Obama ignore Congress on the debt ceiling? : The Reid Report

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