President Obama is slated to announce an executive action to defer deportations for as many as five million illegal immigrants. As Ross Douthat has noted in the New York Times, this amounts to a “Great Immigration Betrayal.” I have always been in favor of comprehensive immigration reform of the sort that was attempted both in the Bush administration and after the 2012 election, and believe that illegal immigrants already here have to be given a route to citizenship. But doing this by executive order after the recent election will do lasting damage to governance in the United States.
The reason I care about this is that I believe the executive branch in the US needs more protected spaces for expertise and the exercise of administrative discretion. As I explained in Political Order and Political Decay, rule of law and democratic accountability—the institutions of constraint—have always featured more prominently in American politics, with much less attention being paid to the state with its executive authority. As Woodrow Wilson put it, “The English race… has long and successfully studied the art of curbing executive powers to the constant neglect of the art of perfecting executive methods.”
Key to the effective exercise of state authority is bureaucratic autonomy. That is, the sovereign people through their representatives in Congress need to delegate to their agents in the executive branch sufficient authority to exercise judgment in the implementation of the ends that Congress mandates. American distrust of state power has typically led to Congress constraining the executive with a host of detailed rules that seek to micromanage the way the executive carries out its business. This is what leads to things like the Federal Acquisition Regulations, compliance with which is what induces the Air Forces to buy $800 toilet seats. The most effective administrative agencies in the US government are those like the Federal Reserve, NASA, and the military, that in their normal operations are given substantial autonomy in carrying out broad policies set by Congress.
American law does in fact provide for executive branch autonomy, the most common form of which is the discretion that every prosecutor enjoys to charge or not charge people suspected of criminal activity. Plea bargaining would be impossible without prosecutorial discretion. There are so many dumb or unenforceable laws on the books that the courts would be totally clogged if prosecutors were compelled to try to enforce every statute (which is why the House Republicans’ lawsuit against Obama for delaying implementation of the Affordable Care Act, something that they themselves favored, seems very silly).
President Obama is evidently thinking about using prosecutorial discretion to justify what amounts to a partial amnesty for illegal aliens. But in doing so he is not simply exercising judgment in the implementation of a law passed by Congress; he is in effect making law unilaterally and flying in the fact of the expressed will of the people.
As Douthat points out, whatever one thinks about the outcome of the election on November 4, it did not represent a mandate for President Obama and the Democrats to keep doing what they were doing. The Republican victory was more or less across the board at national, state, and local levels, giving them firm control of both houses of Congress. For the first time in the last few election cycles, Republicans in the House won not just a majority of seats, but a clear majority of the popular vote. While immigration was not up for direct vote, many Republicans campaigned for a more restrictive policy. I don’t see any way in which the election results could be interpreted as a mandate for Obama to change policy on deportations as he plans to do.
Apart from its effects on immigration, Obama’s decision will have grave consequences for future presidents. The United States needs more bureaucratic autonomy and impartial expertise, not less; partisan polarization has poisoned many areas of decision-making and threatens to lock up the government altogether. But if executive branch agents are to be granted authority in the way that they implement the law, they themselves have to behave in a responsible fashion and not substitute their own policy preferences for those expressed by the people in the electoral process. Obama’s action will throw red meat before the Republicans; they will not just seek to reverse this action, but to impose a whole new set of controls across the board on the executive branch. They are likely to use their control over the budget to do so, making sensible budgeting even harder.
This case illustrates some of the weaknesses of presidential systems. In a parliamentary democracy, this kind of conflict could not occur; the executive is an emanation of the legislature and beholden to it. In a parliamentary system it is possible to have a reasoned discussion about the limits of executive authority, free of the partisan rancor that accompanies American executive-legislative relations in a period of divided government.
President Obama is clearly frustrated by gridlock and partisanship, and is seeking to use executive authority to rescue something of a legacy from his second term. In doing so he is attempting to go down the path of many Latin American presidential systems which, when stymied by gridlocked legislatures, have seen presidents grab power in their own hands and rule by decree. Unilateral use of presidential authority hasn’t produced better democratic government in Latin America, and it won’t in the United States either. What it will do in the long run is leave a worse legacy of even more extreme partisanship, and a reduction of those protected spaces harboring some degree of responsibly exercised executive autonomy.