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August 05, 2014 11:58 AM Unconstitutionalizing Obama

By Ed Kilgore

At the Daily Caller, Mickey Kaus offers a take on Obama’s use of executive powers on immigration that reveals more about the president’s critics than about the president:

[I]t’s alarming when the “constitutional scholar in the White House” seems to advance a novel constitutional argument that is grounded quite explicitly in corporatism. Here is President Obama from his press conference last Friday, explaining why he feels justified in making an end run around the House of Representatives and imposing his own immigration policies through executive action:
“THE PRESIDENT: Wendell, let’s just take the recent example of immigration. A bipartisan bill passed out of the Senate, co-sponsored by not just Democrats but some very conservative Republicans who recognize that the system currently is broken …
“And so we have a bipartisan bill, Wendell, bipartisan agreement supported by everybody from labor to the evangelical community to law enforcement. So the argument isn’t between me and the House Republicans. It’s between the House Republicans and Senate Republicans, and House Republicans and the business community, and House Republicans and the evangelical community. I’m just one of the people they seem to disagree with on this issue. …
“The point is that on a range of these issues, whether it’s tax reform, whether it’s reducing the deficit, whether it’s rebuilding our infrastructure, we have consistently put forward proposals that in previous years and previous administrations would not have been considered radical or left wing; they would have been considered pretty sensible, mainstream approaches to solving problems. ….
“And in circumstances where even basic, common-sense, plain, vanilla legislation can’t pass because House Republicans consider it somehow a compromise of their principles, or giving Obama a victory, then we’ve got to take action. Otherwise, we’re not going to be making progress on the things that the American people care about.”
Maybe we shouldn’t read too much into a press conference, but Obama certainly seems to be groping for a formal argument here that would set out the circumstances in which he is justified in bypassing the legislature described in the Constitution — Congress — and acting on his own. The argument would be: “Where the key interest groups of society — business, labor, religious organizations and the MSM (who else is going to anoint a bill “common sense … legislation”?) — are lined up behind a policy, then if Congress doesn’t act, the President can.

I’d say Kaus is the one “groping for a formal argument here.” Obama’s position on his use of executive powers over immigration policy is that he’s simply setting rules for the exercise of prosecutorial discretion, a universal practice in law enforcement. Maybe he’s exceeding his powers, maybe he’s not; the courts will eventually sort it out. But in reading the section of the press conference that Kaus highlights, and reading the original transcript, I don’t see any effort, “groping” or otherwise, to articulate any “novel constitutional argument.” Obama’s references to the interests supporting immigration reform are part of a commonplace political argument that the GOP and its constituency groups are hopelessly confused and divided on the subject, and incapable of positive action. So he’s making a political, not a constitutional, case for his future actions.

Kaus’ exotic interpretation of Obama’s intentions reflect a growing tendency among his conservative (and other—I’m not sure how to ideologically shoehorn Mickey these days) critics to create a constitutional crisis out of political differences and the consequences of Obama’s re-election in 2012. It’s effective if dangerous as agitprop, but also illustrates the deep frustration of Obama-haters (again, I don’t read Kaus often enough to know whether that description fits him personally) at the wily president’s ability to thwart what many of them consider the manifest destiny of conservative governance.

So while John Boehner has managed to more or less unite Republicans behind a litigation strategy for “stopping” Obama’s executive actions, the widespread rhetoric of “tyranny” and “unconstitutional actions” points logically towards impeachment, however much Boehner wants to pretend that prospect is a “scam” invented by Democrats for fundraising purposes. You’d generally figure the clock will run out on that possibility soon enough, but that’s what we thought at this point in 1998, too.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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