Too Few Cooks In The War Room?

In an account “based on interviews with more than 30 current and former U.S. government officials”, David Rohde and Warren Strobel depict the Obama administration’s national security decision-making as an overly centralized affair, with the White House and the president’s inner circle taking control of decisions normally delegated to the Pentagon or the State Department:

In some ways, Obama’s closer control and the frequent marginalization of the State and Defense departments continues a trend begun under Bill Clinton and George W. Bush. But under Obama, the centralization has gone further. It was the White House, not the Pentagon, that decided to send two additional Special Operations troops to Yemen. The White House, not the State Department, now oversees many details of U.S. embassy security—a reaction to Republican attacks over the lethal 2012 assault on the U.S. consulate in Benghazi, Libya. A decision to extend $10 million in non-lethal aid to Ukraine also required White House vetting and approval.

On weightier issues, major decisions sometimes catch senior Cabinet officers unawares. One former senior U.S. official said Obama’s 2011 decision to abandon difficult troop negotiations with Baghdad and remove the last U.S. soldiers from Iraq surprised the Pentagon and was known only by the president and a small circle of aides.

Obama’s Imperial Presidency? Ctd

by Dish Staff

Last week, Douthat provoked a conversation about Obama potentially legalizing millions of undocumented immigrants with an executive order. Chait is uncomfortable with Obama’s plan:

I fully support Obama’s immigration policy goals. But the defenses of Obama’s methods seem weak and short-sighted. To imagine how this method might be dangerous, you have to abstract it away from the specific end it advances and consider another administration using similar methods for policies liberals might not like. What if a Republican president announced that he would stop enforcing the payment of estate taxes? Or suspend enforcement of regulations on industrial pollution? Or laws on workplace discrimination against gays and lesbians? …

The Linzian nightmare that seized many liberals last year is a vision of a political system in which neither the president nor the Congress can share power, and neither recognizes the other’s legitimacy. The extremism of the Republican Party may have precipitated Obama’s confidence in unilateralism. To think that the cycle will end here, and that a future president won’t claim more expansive and disturbing powers to selectively enforce the law, requires an optimism not borne out by history. In the short run, we will rejoice in the sudden deliverance of massive humanitarian relief to people who have done nothing more than try to create a better life for their families. In the long run, we may look back on it with regret.

But Jonathan Cohn doesn’t worry much about Obama’s potential executive actions because a Republican president could reverse them:

I totally get the underlying concern here. The limits of presidential power matter and smart, reasonable people can disagree about what they should be. But here’s one fact to remember: Any action Obama takes will, by definition, lack the permanence of legislation. President Ted Cruz could undo it on January 20, 2017. He might not want to do that, for all sorts of political and practical reasons. But he or any other Obama successor would have the same kind of unilateral authority to act that Obama does. And reversing an executive order is a heck of a lot easier than trying to undo legislationwhich, after all, requires new legislation, which in turn means pushing a new bill through both houses of Congress and getting a presidential signature.

On the legal merits, Eric Posner continues to insist that Obama can act to halt deportations:

When government agencies decide which types of corporate or tax fraud to investigate, and which types to ignore, they exercise executive discretion, as they do when they decide whether to shut down an undercapitalized bank or a restaurant that has served food that gives someone a stomachache. This is why a crusading prosecutor, like New York’s Eliot Spitzer in his time, can decide to crack down on a type of conduct—insider trading, accounting fraud, whatever—that had previously been winked at. We live surrounded by “domestic Caesars.”

All of this goes double for immigration law. The president’s authority over this arena is even greater than his authority over other areas of the law. For decades, presidents of both parties have deferred legal action against millions of people who entered the country unlawfully. As the immigration law experts Adam Cox of New York University School of Law and Cristina Rodriguez of Yale Law School have described in a paper, this has been going on at least since the 1940s.

Steinglass sees the “threat to the rule of law here comes mainly from America’s unrealistic immigration policies”:

The country is a very rich, well-governed country that shares a 3,000-kilometre-long border with a much poorer, badly governed one, which in turn borders countries that are poorer still. Until Central America becomes stable and prosperous, it will continue to send millions of emigrants to the US. Current immigration quotas, which date from 1990, limit each country to no more than 7% of the total of 700,000 legal immigrant visas each year; in principle, Mexico is treated the same as Switzerland. Enforcing this skewed system requires America to constantly raise the already large sums it spends on patrolling the Mexican border; in 2012 America spent $11.7 billion on border security. Fully sealing the border could cost $28 billion per year. The American public (let alone the Republican party) has shown no willingness to appropriate that much money. Deportations rose from 70,000 in 1996 to 419,000 in 2012, with the Obama administration deporting as many people in its first five years as the Bush administration did in eight. Yet this has made no dent in the total population of undocumented immigrants. And the current level of deportation seems to be politically unsustainable. Latino constituents are increasingly fed up.

He goes on to argue that “Republican inability to articulate any coherent immigration policy other than “deport them all” amounts to a preference for fantasy over reality, rather than engaging in the messy job of making policy for the real world.” But Reihan thinks Congressional gridlock is good, in that it serves as a check on government actions that lack public support:

The House of Representatives was designed to be the part of Congress that is most responsive to popular opinion. It’s not at all obvious that members of the House are failing in their constitutional obligations when they are resisting a legislative proposal—even one backed by every significant business lobby under the sun, Michael Bloomberg, Mark Zuckerberg, and other enlightened billionaires—that increases immigration levels when doing so is extremely unpopular.

However, Yglesias points out that by obstructing action on this and other issues, the House GOP ends up with less favorable outcomes:

Regardless of your views on what should happen with the unauthorized population, a compromise is strictly preferable to letting immigration authorities flail away at the situation just as a compromise was strictly preferable to letting the EPA handle climate change without congressional input.

Yet at this point, blindly choosing the worse outcome over the better one has become such an ingrained habit for the ideological right that it barely seems to have been considered. Instead, immigration restrictionists waged a vigorous intra-party war against the supporters of comprehensive immigration reform. They sought to prevent a sell-out, and did so utterly without regard to whether blocking comprehensive reform would actually lead to an outcome they prefer.

Obama’s Imperial Presidency? Ctd

This week the blogosphere has been debating the legality and advisability of Obama unilaterally legalizing millions of undocumented immigrants. Douthat continues to oppose the idea:

The argument is, basically, there’s nothing really new here, this is just an extension of the way we did things already, and as for that totally sweeping new thing associated with this kind of change but not with pre-existing practice, oh, that’s just a coincidence, it’s the result of longstanding legal norms, we have nothing to do with that, didn’t really even think about it when we made the call, look, a leopard! 

The reality is that longstanding legal precedent (codified in the 1986 immigration reform, I believe, but extending earlier) does indeed allow the executive branch to grant work permits to people who receive deferred action … and that legal authority is, of course, one of the biggest reasons why activists wanted the administration to make a formal deferred-action move, rather than just circulating a memo on enforcement priorities and leaving matters there. There’s nothing accidental or unforeseen or non-central about the DACA/work permit combination, in other words; indeed, DACA explicitly created a new application system for work authorization — which, as Conn Carroll points out, is part of why this change, again supposedly just a codification of existing practice, has actually ended up snarling the system of green card and visa applications for people applying to live and work here through normal channels. And the fact that work permits can be made available once deferred action is invoked is precisely why an action on the scale of DACA — to say nothing, obviously, of the super-DACA currently being floated — represents such an aggressive use of presidential power, approaching a rewrite of the law.

Shikha Dalmia, on the other hand, defends the legality of the actions Obama is considering:

Margaret Stock, a Republican immigration lawyer and a Federalist Society member, notes that such [abuse of office] accusations don’t appreciate that all this is fully authorized by those laws. “The Immigration and Nationality Act and other laws are chock-full of huge grants of statutory authority to the president,” she explains, a point also emphasized by the nonpartisan Congressional Research Service in its 2013 brief. “Congress gave the president all these powers, and now they are upset because he wants to use them. Other presidents have used the same authority in the past without an outcry.” …

In fact, notes Stock, he could go even further and offer asylum to the Central American kids lining up at our borders, instead of sending them back as he has been promising to do. Section 207 of the INA gives him the authority to declare a humanitarian emergency and hand refugee status to all of them – and then some. And this wouldn’t be unprecedented, either.

The United States did this as part of Operation Pied Piper to accommodate fleeing children fromWorld War II and then Operation Pedro Pan in the 1960s to provide a safe haven to Cuban kids.


Putting the legal debate aside, Nyhan wonders “why Mr. Obama would engage in such a move before the election.” He remarks that “a broad executive action could provoke a backlash in the midterm elections that might be avoided with a move just a few months later”:

Given these risks, the politics of pre-election legalization seem inexplicable, creating an opening for elaborate bank-shot theories about Obama’s intentions. The columnist Charles Krauthammer floated a conspiracy theory along these lines Wednesday, suggesting on Fox News that Obama might be trying to “bait Republicans into impeachment as a way to save his party in the midterm elections.”

Such an outcome seems unlikely, but the comment illustrates just how much uncertainty there is over what Mr. Obama is doing or how Republicans — and voters — will react.

Obama’s Imperial Presidency? Ctd

Douthat fears an imminent Obama power grab on immigration. In response, Greg Sargent talks to experts about the limits of executive power. Here’s an important point by attorney David Leopold, “former president of the American Immigration Lawyers Association and immigration reform advocate who has consulted with the White House on immigration law”:

Though many argue that [deferred action for childhood arrivals (DACA)] grants its beneficiaries work status, in fact, the regulation that grants work status to undocumented immigrants who have been granted deferred action predates DACA and applies to many other categories of people granted deferred action. The federal regulations governing employment under immigration law existed well before DACA. Under those regulations, any undocumented immigrant granted deferred action — under programs that preceded DACA or coincide with it — had already been able to apply for employment authorization. It requires them to demonstrate economic necessity. That applied to anyone granted deferred action either individually or categorically.

Therefore, DACA did not create this authorization to work — and nor would its expansion. It simply created a new category extending an already existing work authorization for beneficiaries of deferred action. The president’s authority to grant work status long precedes DACA, and while it does apply to DACA and would apply to its expansion, it is not a direct outgrowth or creation of either.

Beutler goes another round with Ross:

If DACA combines a lawful exercise of prosecutorial discretion with a lawful provision of work permitsand Greg Sargent’s expert sources make a very strong case that it doesthen the question for Douthat is, where along the continuum between a million-or-so potential DACA beneficiaries and the (perhaps) five million beneficiaries of an expanded program would it transform into the “lawless” abomination he decried in his column?

The obvious answer to that question is: We can’t say until we see the details. All we know is that Obama is contemplating a program that’s different in degree, not necessarily in kind, from DACA. Which is why my original response to Douthat’s column posited that he had assumed too much. I still contend that he did.

I remain queasy, but somewhat more sympathetic to the legal case for executive action than before I understood the precise technicalities. I assume that the administration has done due diligence on all of this before it takes a leap in the dark.

Obama’s Imperial Presidency? Ctd

Ross defends his “Caesarism!” charge from critics:

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 polarizedutterly ineffectivewildly 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.

Obama’s Imperial Presidency? Ctd

Yesterday, Eric Posner defended Obama’s legal right to unilaterally legalize large numbers of undocumented immigrants. Reihan counters:

What Posner neglects is that the deferred action contemplated by the Obama administration does in fact represent a departure from current practice, as it would grant a broad class of unauthorized immigrants a work permit. A work permit is a valuable asset that would essentially turn unauthorized immigrants into authorized immigrants for various economic purposes, and it is the desirability of this formal legal status that has served as the impetus for the push for comprehensive immigration legislation.

Very few unauthorized immigrants have access to such work permits. (Seriously, ask anyone: formal legal status in the form of a federal work permit is pretty important to unauthorized immigrants and their allies, and it’s pretty different from de facto non-enforcement. Jessica Vaughan of the Center for Immigration Studies has addressed the extraordinary cases in which deferred action has been used in the past. Think Haitians fleeing the ravages of the 2010 earthquake or foreign students displaced by Hurricane Katrina.) If there were no meaningful difference between today’s semi-official policy towards unauthorized immigrants who don’t commit serious crimes and the status the president (reportedly) intends to offer them, we wouldn’t be having a roiling immigration debate.

I have to say I’m inclined to agree with Reihan on this. Robert Delahunty makes related points:

The White House keeps repeating that the president will be forced to act unilaterally on immigration because of a “do-nothing” Congress. That in itself is an admission the president would be taking action of a legislative kind.

Other presidents have not cast their grants of temporary relief to illegal aliens in such dramatic terms. And Obama himself acknowledged in his first term that he had no constitutional power to take the kind of steps he seems ready to authorize now.

Second, the White House plan will almost certainly include work authorization provisions. But ordering that measure would go beyond mere executive inaction. To confer such legal rights, the president would need a delegation of affirmative authority from Congress. To say that Congress has under-funded its deportation mandates is not enough. Where is this affirmative delegation?

Third and perhaps most important, Posner overlooks a massively obvious fact: a new presidential non-enforcement decision on immigration this campaign season comes against a pattern of repeated refusals to enforce the law in both immigration and other contexts. The administration’s unauthorized postponement last July of the employer mandate in its own health care law is but one of dozens of examples of this pattern.

For me, a critical point is that Obama himself has said before that he did not have the power to do this. It was part of his argument for putting pressure on the Congress. How would he square that contradiction? The legislature does not exist to obey the president – and if not, have him do the work by executive action. I completely understand the temptation. We do not have opposition in Congress; we have de facto nullification of a presidency. Nonetheless, it seems to me that Obama would be giving the GOP a weapon to add a smidgen of credibility to their otherwise absurd case for impeachment. He should resist it.

Obama’s Imperial Presidency?

Over the weekend, Douthat claimed that “the president is contemplating — indeed, all but promising — an extraordinary abuse of office: the granting of temporary legal status, by executive fiat, to up to half the country’s population of illegal immigrants.” Posner pushes back:

The executive branch spends a lot of time not enforcing laws. Congress has illegalized an enormous amount of activity without giving the president the resources to enforce the laws, so the executive has no choice but to make a list of priorities and devote its attention to law violations that, in its opinion, are the most serious. Thus, the IRS doesn’t audit paupers very often. The Justice Department ignores a lot of anticompetitive behavior that might raise prices a bit but not much. The DEA focuses on criminal syndicates rather than ordinary drug users, although both violate federal law. And so on.

Nearly all of this non-enforcement takes place with implicit congressional acquiescence; once in a while, Congress complains because the president’s priorities are not the same as its own. But the president has no obligation to listen to these complaints.

The Constitution gave him executive power while preventing Congress from compelling the president to act except by issuing the extreme and usually non-credible threat of impeachment. This is the separation of powers. People like Douthat wrongly think that separation of powers means that the president must do what Congress decides. That’s not the principle of separation of powers; that’s the principle of legislative supremacy, embodied in parliamentary systems like Britain’s, which America’s founders rejected.

Beutler finds Douthat’s crowing recklessly premature given that “we don’t know what Obama’s going to do”:

This tendency to assume the legal high ground follows naturally from a political strategy of playing up unilateral executive actions as evidence of presidential lawlessness. It’s tempting and convenient for conservatives to treat these as open and shut cases. But outside the right, it’s best to view their efforts as sophisticated attempts to work the refs rather than as judicious and conclusive interpretations of fact.

Drum weighs in:

As it happens, I think the current Republican obsession with presidential overreach is fairly pointless because their examples are so trivial. Extending the employer mandate might very well go beyond Obama’s powers, but who cares? It’s a tiny thing. Alternatively, the mini-DREAM executive action is fairly substantial but also very unlikely to represent any kind of overreach. Ditto for recent EPA actions.

Presidents do things all the time that push the envelope of statutory authority. To be worth any serious outrage, they need to be (a) significant and (b) fairly clearly beyond the scope of the president’s powers. I don’t think Obama has done anything like this yet, but if Republicans want to test that proposition in court, they should go right ahead. That’s what courts are for.