"As long as your guy wins on a policy you agree with it doesn't matter what damage is done to the constitutional order. This is a dangerous way of thinking, but it appears that this is new normal."

"I agree on the dangerous way of thinking part, but is it the new normal?"

More to the point, is any damage actually being done?

The answer is "No" and the courts will ultimately decide this.

@semck

Speeches are trial balloons to gauge public reaction. Executive orders and implantation are what he decides upon after he sees what he can get away with. A law and order crowd can't complain if Obama's deporting criminals first because then the crowd is soft on crime.

This is what you get from separating from Great Britain.

That's rhetoric in a speech. The policy is to give five million people legal status and work permits. He is de facto changing current immigration law with something he likes better.

I say it again. You're thinking only in partisan terms. You care not for the harm this does to the constitutional order. Who cares how the caudillo gets things done so long as I agree with him?

"He is de facto changing current immigration law with something he likes better."

He is not.

"I say it again. You're thinking only in partisan terms."

I am not.

"You care not for the harm this does to the constitutional order."

It does not.

Here's the DOJ's rationale for why the order is within legal bounds:
http://www.justice.gov/sites/default/files/olc/opinions/attachments/2014/11/20/2014-11-19-auth-prioritize-removal.pdf

"More to the point, is any damage actually being done? The answer is 'No' and the courts will ultimately decide this."
With respect, this represents a terribly impoverished view of American constitutional government. "As long as the courts weigh in, proper procedure will have been followed" relegates the executive and legislative branches to secondary status -- which, even if it seems a superficially accurate view of American politics in practice, is in fact not the way the system works.

^Three very well argued points.

Terribly impoverished view? Hardly.

A law was made. It's being executed with discretion. If there's a legal challenge, the judicial will have the final say.

How do you think the system works, if not this way?

The attitude of "well, at least we know the courts will stop it if it's bad" dismisses the much more crucial point of "the other branches ought to have the self-restraint to avoid doing it if it's bad." What you seem to be suggesting is that "self-restraint doesn't matter; as long as we have court-restraint, everything is fine." That, I would think, IS an impoverished view of constitutional government.

If I'm misreading you, then never mind.

As for the order itself, I'm ignorant about whether or not it's legally proper.

Also, I'm not arguing that the branches of government (or the federal government as a whole, in its relationship to the states) DO actually practice self-restraint as much as they could, merely that we ought to think it unseemly if they don't.

"A law was made. It's being executed with discretion. If there's a legal challenge, the judicial will have the final say."

I wish you could see the irony of your statement. Effectively, you're arguing that checks and balances will solve the dispute. But the whole dispute is about the president violating our system of checks and balances by de facto legislating without Congress.

You also continue to just ignore the fact that the president's "discretion" here is swallowing the rule. Take this hypothetical and see how you like it.


It's 2022. A Republican president is in his second term, but the Democrats have recaptured Congress. The president comes on TV and says, "Our tax system is hopelessly dysfunctional. It strangles small businesses who are the job creators of our economy. For years, Congress has failed to act on desperately needed reform. Therefore, I will instruct the IRS to not collect any corporate income tax for five years. I already instructed the IRS not to audit companies who meet certain criteria laid out by the Chamber of Commerce. This new, more expansive policy will allow small business owners to put more of their money towards hiring more American workers and growing our economy."

Of course, not only does the Mom's Deli stop paying income tax, so does Coca Cola. Still like executive action of a wider scope? See now how it just depends on it policy beong one you happen to agree with? See how this turns a president into an elective monarch who can make law as he pleases without Congress?

But, but that's evil Invictus, Obama doesn't do anything evil ever, so this is different and you're wrong stupid gop!!!11!

It is clear that the judiciary is the ultimate arbiter of the law. If you want to interpret that as meaning the legislative and executive have secondary status, that's on you, though I'm sure you understand the executive nominates and legislative confirms the judiciary.

Self-restraint is primarily expected of the judiciary so the executive and legislative may fulfill their duties. I'd posit that Obama has followed the oath of office despite the protests of his political opponents. I'd further posit that *every President* has followed the oath of office, and if they knew they were going to be on shaky ground, they came up with a legal justification anyway. The worst offenders though are those, like Dubya, who sent Americans to die with a false casus belli.

"But the whole dispute is about the president violating our system of checks and balances by de facto legislating without Congress."

No, it is not. That's the dispute you *want* to have. Most legal scholars have said the President is well within his authority to take these actions. He is *not* "de facto legislating without Congress" despite the GOPs emotional desire to believe it so.

That's the political calculus here. Republican leaders know, ultimately, that their legal arguments are bogus, so they have to raise the specter of an "imperial presidency" to score political points now.

With respect to the IRS in 2022 argument:
1) Keep dreaming. No Republican will be in their second term then. It'll almost assuredly be a second-term Democrat, hopefully not Hillary. But, I'll work with that since a 6th year Republican slump would hypothetically be in play and push Congress toward the Democrats...
2) That's a pretty laughable scenario, and not at all comparable, especially without details. Not gonna argue with a phantom proposal. Good try though.

"Most legal scholars have said the President is well within his authority to take these actions. He is *not* "de facto legislating without Congress" despite the GOPs emotional desire to believe it so."

Most? Links for that? This is largely based off of a WashU's law professor's law review article, from what I've picked up. As for it not being de facto legislating, will you ever address my point that discretion of this scope swallows the rule? How does the president saying he will give legal status and work permits to five million people here illegally not de facto rewrite the law? I'd like to see some actual argument.

With respect to your numbered points:
10 Way to miss the intent entirely. I'm not predicting a GOP president in 2022, just using one in this thought experiment.
2) How is it not comparable? It's the president exercising discretion in how he enforces a law to the extent that the law is not actually enforced. The principle is the same, and this is *exactly* the sort of thing a future president of the opposite party will do if this unilateral move by Obama is allowed to stand, even if the mode of expression may not necessarily be corporation tax.

More of Obama speaking for himself:

"The problem is that I’m the president of the United States, I’m not the emperor of the United States. My job is to execute laws that are passed. And Congress right now has not changed what I consider to be a broken immigration system. And what that means is that we have certain obligations to enforce the laws that are in place even if we think that in many cases the results may be tragic."

--Barack Obama, 2013

One shudders to ask -- what changed??

"I'm going to put people in my place, so when the history of this administration is written at least there's an authoritarian voice saying exactly what happened."
ABUSE OF POWER

Here are a couple of good articles about why Obama's decision is both legal and good policy:

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/20/obama-immigration-and-the-rule-of-law/
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/21/obamas-executive-order-on-immigration-is-good-policy-as-well-as-good-law-but-not-quite-as-good-as-it-may-seem/

Ilya Somin is by no means a supporter of the Democrats or Obama, generally speaking; he's a libertarianish writer who I first heard of criticizing the truly awful Kelo decision.

"Rarely is the question asked: is our children learning?"
ABUSE OF POWER

"I know the human being and fish can coexist peacefully."
ABUSE OF POWER

"If I'm the president, we're going to have emergency-room care, we're going to have gag orders."
ABUSE OF POWER

"Our enemies are innovative and resourceful, and so are we. They never stop thinking about new ways to harm our country and our people, and neither do we."
ABUSE OF POWER

"The war on terror involves Saddam Hussein because of the nature of Saddam Hussein, the history of Saddam Hussein, and his willingness to terrorize himself."
ABUSE OF POWER

"For a century and a half now, America and Japan have formed one of the great and enduring alliances of modern times."
ABUSE OF POWER

"I fully understand the cattle business. I understand the pressures placed upon Canadian ranchers. I believe that, as quickly as possible, young cows ought to be allowed to go across our border. I understand the integrated nature of the cattle business, and I hope we can get this issue solved as quickly as possible."
ABUSE OF POWER

Executives have been defying legislatives for years from Bush I governing with executive orders to a governor using line item veto to strike out letters in a law to change its intent and purpose. (I really wish I could find the link for that)

All three branches have been fighting each other for control. FDR tried to increase the number of Supreme Court justices to prevent them from blocking parts of his New Deal. After the Civil War, Congress passed a law to prevent the President from removing Cabinet members without their approval. Nixon started not spending appropriated money for legislation he didn't approve. The list goes on and on.

I saw Somin's post, CK. You're correct that he's typically viewed as a conservative (really libertarian). I didn't think he particularly engaged the arguments on the other side much though. For a good week, there have been vigorous responses available to most of the arguments he used there.

For my part, I think what Obama did is in a legal gray area, and certainly wouldn't (for example) support impeachment or say that he clearly violated the Constitution. What I do think is that he clearly damaged our institutions. Executives using unprecedentedly broad powers contra Congress's will while acting in legal gray areas, especially in an age when the executive is already far too expansive, is bad for the country, and I think Obama recognized that as late as last year. I'm sad that he forgot it, especially because he (very clearly) torpedoed any hope of getting this or anything else done for the next two years legally.

Bush spent much of his Presidency staking out ground in legal gray areas, and Obama has staked out large new ground today. It was terrible for the country then, and it's terrible for it now (even though the actual actions he's taken are things Congress should, in some form or another, probably do). People of any given day tend to care more about the domestic or foreign issues facing the country than the institutions that enact and execute those issues, but most of the time, the latter is far more important to the long-term health of the country.

The classic framework for analyzing actions like this, by the way, is Justice Jackson's concurrence in Youngstown Sheet and Tube v. Sawyer, which is classic of the first order that everybody should read.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=343&invol=579

(Ctrl+F for Justice Jackson).

The debate today will largely center on whether Obama's action is a category-II or category-III act. So far I tend to see it as the latter, as indeed did he last year. Later if time allows, I'll try to track down actually substantive discussion of the point.

Okay, I'm done with that. Here is an article explaining the legal basis for Obama's recent immigration order:
http://www.slate.com/articles/news_and_politics/jurisprudence/2014/11/anyone_who_thinks_the_legal_arguments_behind_obama_s_immigration_order_are.single.html

In other words, the President is simply abiding to Congressional legislation and not setting any precedent. Congress can try to change the laws on the books, but they will run into a presidential veto if they set about deporting en masse. If Obama should be criticized for anything, it's why he waited so long to take the action. I guess he was hoping that Democrats in Congress would get their act together and clarify the legislation. But now that Republicans control both houses, he wanted to force Congress to act before turning into a lame duck