Barack Obama used to teach constitutional law at the law school in which I am presently enrolled. He was by all accounts well-liked by his students, though perhaps somewhat aloof to his then-fellow faculty members. I currently have class three days a week in then-Professor Obama’s old favorite classroom, Room V, and each time I enter I see a photo near the door commemorating his teaching legacy. White House Press Secretaries Jay Carney and Josh Earnest — not to mention the president’s usual media apologists — oftentimes like to remind us “stupid” and inferior plebeians of the president’s uniquely germane academic pedigree. In 2008, in fact, this erstwhile constitutional law scholar sought the presidency in no small part to reverse what he considered an unprecedented usurpation of executive authority away from a complicit Congress. To his credit, earlier in his presidency Obama repeatedly kept his word on the proper bounds of the executive branch/legislative branch tug-of-war, in the context of immigration enforcement — much to the dismay of his largely open-borders and anti-sovereignty donor base. This should not much surprise us; after all, it does not take a constitutional law scholar to make sense of the Vesting Clause of Art. I (“All legislative powers herein granted shall be vested in a Congress of the United States…), the specifically enumerated power delegated by the States to the Congress in Art. I, § 8, cl. 4 to “establish a uniform rule of naturalization…”, and the president’s Art. II, § 3 prerogative to “take care that the laws be faithfully executed”.
And yet, somehow, here we are, with a unilateral amnesty of an unprecedentedly massive scope and scale. In what amounts to a quasi-monarchical temper tantrum following an election night shellacking in which nationwide Republicans — who collectively ran on very little substance other than near-unanimous rejection of precisely this type of ukase — effected a historical repudiation of his party’s agenda, Obama has essentially stuck his middle finger to the voting populace and decided that his “pen” and “phone” will themselves suffice to suspend and rewrite large portions of our codified immigration law. Do not believe what liberals may tell you about there being any kind of presidential precedent for stretching the doctrine of “prosecutorial discretion” this far; as Professor Josh Blackman details, there are very real and substantive distinctions between this amnesty and the unilateral amnesties of some of Obama’s Republican predecessors. Whereas President Reagan’s and H.W. Bush’s amnesties were stopgap measures largely pursuant to the (highly flawed) statutory amnesty of 1986, Obama’s amnesty flies in the face of Congress’s repudiation of the DREAM Act (which directly led to Obama’s similarly lawless and UAC crisis-inducing Deferred Action for Childhood Arrivals (“DACA”) program), as well as the House’s (proper) decision to kill the Senate’s Gang of Eight “comprehensive immigration reform” bill. In effect, then, whereas Presidents Reagan and Bush may have been acting in the safe “first category” of executive power as described in Justice Jackson’s famous concurrence in the 1952 Supreme Court decision, Youngstown Sheet & Tube Co. v. Sawyer, President Obama is almost certainly in the infamous “third category” of directly defying implied congressional intent. Although a decades-long systemic abdication of congressional power and vitiation of the “nondelegation doctrine” has degraded our separation of powers framework so wildly beyond the original Madisonian/Montesquievian intent as to render a unilateral decree of this nature even plausible enough where its constitutionality is a live question, Obama’s own Office of Legal Counsel concedes in its way-too-“clever” apologia that deferred action of this nature must retain an inherent element of individual case-by-case analysis, and that by coming awfully close to declaring a whole class of illegal immigrants immune from deportation threats the president is skating on very thin ice.
Even holding aside the unprecedented expansion of the doctrine of “prosecutorial discretion” to unilaterally shield this many illegal immigrants from the threat of deportation, Andy McCarthy at National Review makes the simple yet compelling case that this type of deferred action — even if it can be expanded to effectively cover a whole “class” of lawbreakers — cannot be legally sustained in defense of the affirmative granting of work permits and Social Security numbers. I find this argument persuasive, and personally heard it proffered numerous times while interning on the Hill this past summer, in explaining why the DACA program is similarly lawless. In this sense, DACA and Obama’s latest executive action exceed basic “amnesty” by entering the realm of conferral of positive benefits. Many of the amnesty’s defenders state that the granting of work permits is simply a formalization of the deportation deferred action itself, but this seems far too cute and elides a key philosophical difference — potentially due to some rather transparent ulterior policy agendas — that McCarthy hammered home effectively in his piece arguing for the latest action’s indefensibility.
Indeed, to all but the president’s defenders in the left-wing portion of the legal elite (e.g., Professor Walter Dellinger and former Obama mentor Professor Laurence Tribe) and his own Office of Legal Counsel — though anyone reading the full OLC memo must concede that this action’s legality was hardly even clear to OLC lawyers themselves — it is rather clear that this executive action violates black-letter constitutional law (to the debatable extent that is not itself an oxymoron) and/or murkier “political constitutionalism”. The always-insightful Yuval Levin, in a must-read National Review post, quotes James Ceasar of the University of Virginia for the proposition that:
the Constitution needs to be understood in two separate if related senses:
“The first sense—legalistic constitutionalism—understands the Constitution as a set of rules that can decide policies or cases; these rules are of a sort that can offer definitive answers and that could be employed and enforced by courts. The second sense—political constitutionalism—understands the Constitution as a document that fixes certain ends of government activity, delineates a structure and arrangement of powers, and encourages a certain tone to the operation of the institutions. By this understanding, it falls mostly to political actors making political decisions to protect and promote constitutional goals.”
This is a subtle yet critical distinction. Most of the president’s defenders, such as the OLC, attempt to craft a very narrow defense on technical legalistic grounds. I think they clearly fall short even on those grounds, for some of the reasons already mentioned, but his apologists are at least trying on those grounds. What no one seems to be doing is attempt to defend the president’s actions in the second sense of “political constitutionalism”. If we consider the broader letter and spirit of our Constitution’s separation of powers, it ought be abundantly clear to anyone that regardless of whether or not this action is technically unconstitutional — and again, I do think it is — the fact we are even having this debate is evidence enough for the proposition that Congress needs to dig in right now and begin to reassert its proper place in the traditional Madisonian/Montesquievian constitutional order. When one additionally considers some of the aforementioned secondary factors at work here — this edict’s proximity to the president’s party’s crushing defeat at the ballot box, and also its firm place within Justice Jackson’s infamous “third category” of executive lawlessness, as detailed in his Youngstown Sheet & Tube Co. (1952) concurrence — one must conclude that Ross Douthat is correct in opining that, “[i]f constitutional norms matter, if the separation of powers matter, that context matters; indeed, it matters enough to make this move a clear power grab.”
Let us be clear: this is not about a policy dispute. Amnesty is wrong, but one can be an erudite open-borders advocate and still protest this unhinged and unprecedented presidential infringement into a clear-cut legislative prerogative. If Congress cares about reasserting its proper role in the constitutional order — indeed, as Erick says, if Speaker Boehner and congressional Republicans themselves care about upholding their constitutional duty to “support and defend the Constitution” — then it simply cannot be complicit in this power grab. Congress must fight, and it must fight hard. Putting a hold on all executive/judicial nominees — very much including Obama’s new Attorney General nominee, Loretta Lynch — until he reverses course is an obvious ploy and ought be a no-brainer. Contra what some (probably pro-amnesty) Republican deceivers want us to believe, the power of the purse is an indispensable — and always-available — option that the Congress must use in December’s impending budget showdown. They should issue a short-term spending bill whilst simultaneously defunding the action in a separate Department of Homeland Security appropriations bill, much in line with how Daniel Horowitz lays it out here. U.S. Citizenship and Immigration Services — the branch of DHS largely responsible for processing this amnesty’s new work permits — presumably has somewhat fungible funding, which makes a total defund difficult, but it is incumbent on Congress to try. This might risk Obama shutting down the government, but in the greater name of constitutional order and the protection of individual liberty made possible by our system’s separation of powers, there are longer games to play than the potential risk of a shutdown. Lastly, I am greatly sympathetic to state lawsuits — such as the one Texas might file — challenging the constitutionality of this edict. While that litigation would not finish in time to stop this amnesty, such ultimate adjudication might still be prophylactic for the future of separation of powers. And unlike lawsuits between the branches such as the one Speaker Boehner is filing, lawsuits of the state-sues-federal government variety have a long history dating back to the beginning of the republic.
The above congressional tools have been frequently discussed over the past few days. However, I write to urge Congress to seriously consider going one step further. For reasons I will soon explain, I think it is entirely legitimate and indeed quite possibly salutary for the long-term health of the republic for the House of Representatives to formally draft articles of impeachment pursuant to its Art. I, § 2, cl. 5 prerogative.
Very few seem to be urging this course of action, and the reasons cautioning against impeachment have much merit. Indeed, only two presidents have ever been impeached by the House, and both were acquitted by the Senate. Republicans, even in the subsequent Congress, will not have control of the two-thirds Senate majority needed to convict. Furthermore, the impeachment tool post-Bill Clinton has contemporarily largely been stigmatized as inextricable from a partisan witch hunt, and even though Obama’s unilateral amnesty itself is procedurally unpopular with the citizenry, the reality is that large swaths of the country are more substantively sympathetic to “comprehensive immigration reform” policy itself.
Nonetheless, I — and many others — remain convinced that this is a clear-cut impeachable offense, and it is entirely plausible that if the House fails to act in the 114th Congress by filing articles of impeachment, then the impeachment tool will truly be lost forever. Considering the Framers’ view of the impeachment tool as an indispensable congressional check on executive overreach, that would be nothing short of a travesty.
This offense falls squarely within the original meaning of the Constitution’s language of limiting presidential impeachment to “treason, bribery, or other high crimes and misdemeanors”. In Federalist No. 65, Alexander Hamilton describes the jurisdiction of impeachment proceedings as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust”. Furthermore, to the extent precedent is probative, then President Andrew Johnson’s having been impeached for a statutory violation of the Tenure of Office Act is surely probative in favor of the legitimacy of impeachment for a broader separation of powers dispute involving a violation of Art. II’s Take Care Clause. Surely, under the Hamiltonian language of Federalist No. 65, a “legalistic” and/or “political” constitutional violation — to borrow from Yuval Levin’s above-quoted distinction — of this particular magnitude necessarily consists of an “abuse or violation of some public trust”. Even Obama’s own OLC is shaky on the “legalistic” justifications under this expansive a view of the doctrine of prosecutorial discretion, and virtually no one is defending the effect of this action’s stain on our political culture steeped in the Madisonian/Montesquievian tradition of a letter and spirit of separation of powers.
House Republicans will almost assuredly not heed this advice; they are driven far too much by entrenched K Street interests and by concerns for the GOP’s “brand”/”image”, as opposed to thinking longer term for the health of our republic and rule of law. Yet the reality is that the GOP has enough votes to impeach in the House, and in the new Congress with a Senate majority might feasibly pick up a few Democratic votes for conviction. Notwithstanding that conviction in the Senate will all but assuredly fail, however, the mere use of the impeachment tool for such an egregious executive action as this might create a deterrent for future presidents from attempting such naked power grabs. Lastly, beginning impeachment proceedings will focus nationwide attention on this unilateral amnesty, hopefully driving a large-scale civic debate on the tradeoffs inherent in an executive branch v. legislative branch power dispute. Perhaps such a civic discussion will result in a recalibration of the “nondelegation doctrine” toward a more complete vesting of legislative power in the Congress and less delegation to unaccountable executive branch bureaucrats.
House Republicans should seriously consider filing articles of impeachment. At minimum, even if they decide not to, Republicans should publicly and explicitly float the impeachment idea so that the constitutional law professor-in-chief fully understands the magnitude of his breaching of the public trust and our historically understood constitutional order.
Obama’s unilateral amnesty is lawless in a legalistic sense, and in a civic sense grotesquely turns on its head our political culture of a spirit of separation of powers. Congress cannot be complicit in this lawlessness, and it needs to fight back hard. Stop all executive/judicial nominees, fight on the power of the purse, sue from Republican-governed border states (mostly looking at you, Rick Perry/Greg Abbott), and earnestly consider filing articles of impeachment. The Framers would have expected nothing less.