Ubiquitous media reports indicate the president is preparing to declare he in essence will not faithfully executive certain immigration laws for certain groups of people — millions in total, perhaps — because Congress won’t do what he wants. This from a former constitutional law instructor. One would hope that elected officials of both parties and public figure and media of all political stripes would denounce the notion that congressional intransigence permits executive imperialism.
One option would allow immigrants who are parents of U.S. citizens to apply for temporary legal status which would let them work legally in the U.S. Because children born in the country automatically receive U.S. citizenship, that option could affect about 5 million people, researchers estimate.
A second option would be to allow temporary legal status for the parents of young people already granted deportation deferrals by the Obama administration. That would affect a smaller, but still sizable, number of people.
This brazen and unilateral transformation of duly passed statutes will not easily be forgotten by future presidents. Republican chief executives may decide not to enforce Obamacare, environmental regulations or tax provisions while liberal presidents in the future may choose not to enforce other immigration provisions or, for example, labor laws and regulations against unions. Obama’s arrogant overreach and effort to stir up trouble in advance of the midterm elections for pure partisan gain (saving the Senate, trying to goad Republicans into overreaction) will, along with the disastrous Obamacare and foreign policy debacles, place Obama in a unique category of presidents who deliberately seek to wreck our system of checks and balances and separations of power.
Republicans should prepare a game plan, not merely rule out impeachment (which is the president’s fondest desire). For starters, they and the GOP candidates for 2016 should make clear that any executive order will disappear at the end of Obama’s term and any who step forward for exemptions now may be subject to deportation in 2 1 /2 years. Harsh? No; it’s a sensible deterrent to prevent widespread lawlessness. (The Democratic presidential nominee should be challenged on his or her own plans to rule by executive edict. Let Hillary Clinton try to win an electoral majority on a platform of executive imperialism.)
There are many other tactics at the legislative branch’s disposal. The House — and the Senate if it changes hands — can censure the president and pass legislation to countermand the presidential edicts, let him veto it and then try to override it. Congress can contain whatever enforcement provisions it sees fit that go beyond the president’s edict. Congress can defund parts of the bureaucracy engaged in this lawless action (again, the Senate would join the House if Republicans take over). Congress has the power of the purse and should begin using it strategically to counteract executive overreach and assert its own priorities. Depending on the outcome of the fall election, the Senate could choose to decline to confirm nominees for the remainder of his term if the president is bent on rewriting our laws. In essence, the Obama presidency apart from national security/foreign policy should be declared effectively over. No consideration of his agenda, no cooperation on any legislative initiative. Congress can attend to oversight and pass its own legislation, forcing Democrats to vote on passage and on veto overrides.
The fall elections and 2016 thereby become not as Obama dreams, about the crazy Republicans, but about reestablishing the essence of functioning democracy. Every candidate will be forced to fess up: Are you for lawlessness or restoration of democracy? Are you for or against the forces of chaos and anarchy?
This will be a big moment, the implications of which go far beyond the 2014 midterms. Yes, it is an opportunity for Republicans to go into overdrive in order to capture the Senate. It’s also an opportunity for credible and forceful national leadership. Those on the right who want to lead should think carefully about what they say and do. They, too, are going to be judged as to their fitness for office.