I will concede, certainly, that there are scenarios where congressional inaction obligates some presidential creativity, and that a House as dysfunctional as this one might create more such scenarios than usual. (Which is why, again, I haven’t written angry columns every time — and there have been many — this president has made dubiously-constitutional moves.) And I will concede, as well, that certain crisis-level situations might necessitate more extraordinary moves. (See Constitution, suicide pact, etc.) Posner invokes “the costly and ridiculous near-failure to raise the debt limit in past years,” which isn’t a terrible example: Had Congress actually failed to raise the debt limit, it would have been derelict in its duties, and the White House probably would have been justified in pushing the envelope significantly to deal with whatever economic fallout ensued.
But immigration reform is simply not that kind of issue. We’ve had millions of people here illegally for decades; we will probably have millions of people here illegally a decade hence even if Congress decides to pass major immigration legislation tomorrow; and there is no emergency situation requiring legalization as the obvious, there-is-no-alternative response.
For the record, I think Ross has the better of the arguments here. Yes, Obama is facing a nullification House – a body that will not even allow its own proposals to be signed into law by this president. They are by far the guiltiest party in our governmental dysfunction. But the remedy for that is voting them out, not supplanting them with the executive on a matter this controversial, this political and in this climate. Obama was right the first time: the Congress needs to do this. Ezra, meanwhile, reminds us how gridlock and this kind of executive temptation are not going to go away as long as we have a reactionary, nihilist rump in the House:
Conservative critics go too far when they pretend that Obama’s actions are unprecedented. President Jimmy Carter, for instance, unilaterally pardoned hundreds of thousands of draft dodgers — an action more extreme than anything Obama is said to be considering. At the same time, there do need to be limits on the president’s ability to win policy fights by selectively enforcing laws. …
Congressional dysfunction doesn’t justify any particular executive action. But it should worry both liberals and conservatives who fear the steady expansion of the president’s powers. Congress is going to be divided for a long time. Even as demographic changes make it easier for Democrats to win presidential elections, geography and redistricting make it nearly certain Republicans will hold the House well into the next decade. The result is that this kind of bitterly polarized, utterly ineffective, wildly unpopular Congress is likely to be the norm.
The less Congress is able to do, the more that other power centers in the government will feel they need to do. The system will survive congressional inaction, but it will survive it in part by leaping into the antidemocratic dark.