The Party Of Executive Power?

Julia Azari suspects “strong executive action enjoys more legitimacy when it’s taken by a Republican president than a Democratic one”:

Obama’s supporters on the left haven’t really developed a good political story about why governing through enforcement is a good thing. Most justifications involve vilifying Congress – satisfying for partisans but still casting the administration in a defensive role.

For conservatives during the Bush administration, the narrative was pretty easy to develop. Unilateral presidential action defends elephant.jpgthe nation. Furthermore, the president is a legitimate defender of his own Constitutional prerogatives (so the justification goes; not necessarily my view). This works better for Republican presidents because conservatives have gained issue ownership not only over national security but also, to a great extent, over the question of Constitutional protection.

Civil libertarians are an important part of American political and legal culture. But they haven’t recently formed a political movement around their ideas about the Constitution the way that the Tea Party has. The dominant political framework for understanding the Constitution casts it as a procedural document, meant to protect against excessive government action – even when that action might bring about positive results. This framework is a much more powerful tool for conservatives than for liberals. Although liberals also sometimes draw on Constitutional principles – including limits on executive action – it’s less central to their ideology. This means the politics of enforcement are much more difficult for a Democratic president to justify – enforcement decisions must either be done on substantive, rather than constitutional grounds, or they must tread on territory usually dominated by the other party.

Maybe the Democrats need to take another look at Burke. Or be reminded of the roots of progressivism in The New Republic‘s founder, Herbert Croly. Frank Foer explains:

By the time he crept toward middle age, after so many years of drift, Herbert attempted to fulfill his father’s dreams for him, in one last mad dash for greatness. He poured all his accumulated thoughts and theories into a bulging manifesto called The Promise of American Life. The book, which appeared in 1909, argued that American life had grown hobbled by the lingering legacy of Thomas Jefferson—the nation celebrated an antiquated form of individualism and libertarianism that no longer matched the realities of the industrial age. Modern life had sapped the energy from America; it tolerated rampant mediocrity. To restore itself, the country would have to turn to the theory of government espoused by Jefferson’s old nemesis, Alexander Hamilton. That is, it would need a strong central state. Croly’s book embodied many of the characteristics of the magazine he created: It was in turns wonky and literary; it rigorously analyzed the economic perils of unregulated trusts and calculated the toll of intellectual conformism.

I come at this from a very different Tory tradition. That line of thought wants government to be both limited and yet strong within its rightful parameters. So I don’t have much of a problem with the EPA making rulings based on its statutory authority as an executive office. Or with the president’s war-conducting (if not war-making) privileges. Or with setting priorities within law enforcement. Where does the executive action on undocumented immigrants stand? Somewhere in the middle: within the bounds of legal executive discretion, but in scale and intent, beyond anything that has occurred before – including, it now appears, the actions of president George H W Bush. On balance, I think it’s an over-reach – but an over-reach that needs to be understood in the context of unprecedented Congressional obstructionism. Or to put it tartly in the words of Kevin Drum:

You know, the more I mull over the Republican complaint about how immigration reform is being implemented, the more I sympathize with them. Public policy, especially on big, hot button issues like immigration, shouldn’t be made by one person. One person doesn’t represent the will of the people, no matter what position he holds. Congress does, and the will of Congress should be paramount in policymaking … Both the law and past precedent are clear: John Boehner is well within his legal rights to refuse to allow the House to vote on the immigration bill passed by the Senate in 2013.