The Right Result, Achieved by the Wrong Process, is Wrong

9vzYQwj (2)Throughout the last century in particular, much evil has been done in the service of getting the so-called “right” result more quickly than the Constitutional process would otherwise allow. The Constitution recognizes that certain functions are best handled institutionally by certain parts of the government. Foreign policy, generally speaking, is best handled by the executive, as a single point of contact decision-making process is often called for. Excessive majoritarian fervor is best checked by the judiciary, which is insulated from democratic pressure. But the Constitution expresses a clear preference that most matters of domestic policy lie properly within the purview of Congress, as the most democratically responsive and representative branch of government, and the most likely to accurately reflect national as well as local concerns.


Throughout history, the branch most likely to usurp the power of another has been the judiciary, which has with increasing frequency usurped the proper purview of Congress. It is proper and appropriate for the judiciary to arrest the excessive enthusiasm of Congress which exceeds their constitutional authority; it is improper for courts to implement their own policy when Congress is perceived as acting too slowly. One need only look at the Supreme Court’s muddled and disastrous Eighth Amendment jurisprudence for but one example of the evils attendant in letting the judiciary settle matters that ought to be left to the deliberative process of Congress. Many young conservatives and libertarians seem prepared to ignore this lengthy and well documented history in their support of judicially imposed gay marriage – a legislative solution to the issue, which seems inevitable in any case, could allow for conscience and religious liberty protections for conscientious objectors, whereas a judicially imposed one almost certainly will not.

Nonetheless, having seen the judiciary get away with it for decades without significant pushback from Congress, Barack Obama now seems ready to try his hand at playing Congress with immigration reform. Institutionally, of course, Article I places the prerogative to set a “uniform rule of nationalization” in the hands of Congress, which reflects a clear institutional preference for setting immigration policy in the hands of Congress. And Congress has acted repeatedly on this prerogative, as federal immigration policy constitutes a hefty and lengthy section of the U.S. Code. Nonetheless, Obama seems determined to pretend that there simply are no immigration laws on the books:


Citing his legal authority as chief executive of the United States, Obama said in a press conference in Myanmar Friday that he would act on immigration reform by the end of the year.

“I believe that America is a nation of immigrants,” the President said. Everybody agrees that the system is broken; there has been ample opportunity for Congress to pass a bipartisan immigration bill that would strengthen our borders, improve the legal immigration system and lift millions of people out of the shadows so that they are paying taxes and getting right by the law.”

The hubris inherent in this statement is shocking even for long time observers of a man who named his dog after himself. There has indeed been ample time for Congress to pass an immigration bill, about 250 years to be exact. And in that time, they’ve passed dozens of such bills. Nothing about what is currently occurring suggests that there is some hole in immigration law that demands fixing for the sake of the safety of the Republic; rather, just the petulant insistent by a President who just had his posterior handed to him in a national election that he doesn’t like having to enforce the law as written.

I am, as I have noted here on several occasions, an immigration squish. I have supported several immigration bills that have come through Congress recently which were, I think, unfairly demonized and defeated. My personal preference would be for Congress to pass a bill that many conservatives would doubtless oppose. But at the same time, I recognize that our form of government cannot long survive the usurpation that Barack Obama is proposing to implement. It simply cannot be that the President is allowed to declare that he dislikes a law on the books, and if Congress does not meet a deadline he himself has imposed to change it, he will enforce a completely different law of his own making.


That is not the way interaction between a President and a Congress works; rather, it is the way interaction between a king and his purely ceremonial parliament works.

Regardless of how the individual members  of Congress feel about the particulars of the immigration issue, they MUST take drastic measures, if necessary, to prevent this precedent from being set. If anyone in Congress of either party doesn’t relish having any law they pass being casually brushed aside by a lame duck President with a chip on his shoulder, they must support whatever action is necessary to prevent Obama from carrying out this policy via executive order. And if Congress doesn’t want this President, in particular, to run the show at his own whim for the next two years, he must be stopped now, before he learns that Congress will flinch every time he plays chicken with them.


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