The foregoing does not establish a constitutional basis for the president to usurp the legislative powers of Congress and then set himself up to judge the merits of any subsequent legislation. And the expectations raised by an executive order that resulted in issuing social security numbers, IDs, etc. to millions of people, as is apparently intended, would not go away if Congress passed inconsistent legislation later.
Moreover, an executive order would be more likely to block than to facilitate action on the illegal immigration problem. Obama’s immigration temptation, Wall Street Journal, 11/12/14 (no link available).
As for the politics, we think there’s a good chance Republicans would pass immigration reform in some form in the next two years. The leadership wants to do it, and a majority of the rank and file privately want to vote for it to end the debate. Most realize the growing importance of minority voters to the GOP’s chances of winning the presidency. *** [However, an executive order] could empower the GOP’s yahoo wing and make it harder for even [piecemeal reform] bills to pass.
So it’s hard to see the president’s proposed course of action as anything other than a political ploy, which would fly in the face of, rather than honor, the results of the mid-term elections. What happened? Thomas Sowell, townhall.com, 11/11/14.
Despite the Republican sweep of elections across the country last week, President Obama has issued an ultimatum to Congress, to either pass the kind of immigration law he wants before the end of this year or he will issue Executive Orders changing the country's immigration laws unilaterally. Does that sound like a lame duck president? On the contrary, it sounds more like some banana republic's dictator. Nor is Obama making an idle bluff. He has already changed other laws unilaterally, including the work requirement in welfare reform laws passed during the Clinton administration.
C. Crafting a response – OK, if one doesn’t like what the president is proposing, what can be done about it? Basically, the GOP is split on this question and has yet to come up with any solid answers.
THEORY X - Some Republicans would like to negotiate a face-saving compromise. They say the voters are tired of the bickering in Washington, and are looking for the GOP to show it can get some positive things done rather than simply opposing the president’s agenda. It’s also said the president should feel the same way, as his political legacy will suffer unless he works cooperatively on immigration reform and other matters.
Thus, three Republican members of the Gang of 8 wrote to the president urging that he defer executive action on immigration for a few months so the new Congress would have an opportunity to weigh in on the subject. [Senator] John McCain: Amnesty by executive order would “dramatically harm” immigration reform, Bill Hoffmann, newsmax.com, 11/10/14.
[It] doesn't have to be the way we did it in the Senate, but maybe some parts of it or some aspects of immigration reform, but if he comes out with executive order that many of us, including me, believes is unconstitutional, then he's going to harm the effort really badly.
THEORY Y - Other Republicans envision creating a groundswell of opposition to an executive order that would force the president to think better of the matter. The game plan would be to defund the executive order (i.e., deny funds to implement it in the upcoming spending bill), consider litigation of some kind, and possibly even threaten to begin impeachment proceedings.
In this vein, six senators (Ted Cruz, Mike Crapo, Mike Lee, Pat Roberts, Jeff Sessions and David Vitter) penned a letter to Senator Harry Reid (still Senate majority leader for the lame-duck session) urging cooperative action to force the president to back off. Why these 6 senators say Obama is risking a “constitutional crisis” over amnesty, Kate Scanlon, dailysignal.com, 11/5/14.
The defunding technique is commonly used, according to Senator Sessions, when Congress is seeking to influence the details of Executive Branch policies, e.g., by preventing closure of the Guantanamo Bay prison, and it could equally well frustrate an executive order on immigration policy. No surrender on immigration; who will protect the nation, if not us? Sen. Jeff Sessions, Politico, 11/10/14.
President Obama’s executive amnesty will not be easy to execute. U.S. Citizenship and Immigration Services will have to be ordered to redirect funds and personnel away from its statutorily mandated enforcement duties and towards processing applications, amnesty benefits, and employment authorizations for illegal immigrants and illegal overstays. It is a massive and expensive operation. And it cannot be implemented if Congress simply includes routine language on any government funding bill prohibiting the expenditure of funds for this unlawful purpose.
In the House, dozens of members have signed a letter advocating the defunding approach. Republican pressure builds to block Obama’s unilateral immigration order, Stephen Dinan, Washington Times, 11/12/14.
SYNTHESIS - To date, House Speaker John Boehner and Senate Minority [soon to be Majority] Leader Mitch McConnell have attempted to straddle the fence, making tough statements about the president’s position on immigration reform without offering credible commitments to back them up.
See, e.g., “Boehner: I’ll fight Obama ‘tooth and nail’ on immigration,” Sean Lengell, Washington Examiner, 11/13/14.
•"This is the wrong way to govern. And so all the options are on the table."
•When asked if such options include threatening a government shutdown by withholding funding for government agencies, the speaker said such a move isn’t desirable. “Our goal here is to stop the president from violating his own oath of office and violating the Constitution. It’s not to shut down the government.”
For his part, Senator McConnell characterized the president’s plan as “a big mistake.” Report: Obama will soon announce 10-point plan for illegals, Todd Beamon, newsmax.com, 11/12/14.
President Obama has a duty to help build the trust we all need to move forward together, not to double-down on old ways of doing business. That's why I think moving forward with the unilateral action on immigration he's planned would be a big mistake.
McConnell wants no part of a government shutdown, for which Republicans would be blamed if they attempted to defund executive action on immigration and Democrats escalated the situation. McConnell rules out government shutdown, Stephen Dinan, Washington Times, 11/13/14.
[Defunding] is a well-tested way of Congress stopping the president. But Senate Democrats, who are still the majority for the rest of this year, could refuse to pass that, and even if they did, Mr. Obama could veto it, leaving the GOP with the options of caving and passing a spending bill without the restrictions, or else refusing to pass a bill and sending the government into a partial shutdown.
Boehner has also said unilateral action on immigration might be included in a proposed lawsuit against the president for overreaching his authority. Even assuming such a suit could succeed on the merits (Republicans are reportedly having trouble lining up a D.C. area law firm), it would probably take too long to do any good. Boehner weighs expanding suit on Obama executive power to cover immigration, Robert Costa & Ed O’Keefe, Washington Post, 11/13/14.
FURTHER THOUGHTS – Not being a political organization, SAFE will refrain from commenting on the personalities or motives of the key figures in this drama. Let the American public decide who is out of line.
As a policy matter, however, the Senate immigration bill was seriously defective and we see no reason to believe that the president’s administrative plan would be any better.
Furthermore, the proposal to implement this plan by executive action seems, as Charles Krauthammer recently put it, “constitutionally odious.”
As for the response, we would offer the following suggestions to Republicans:
•Rhetoric – you’ve been making essentially the right points about the president’s proposed course of action, keep it up, but avoid making empty threats.
•Cooperation – being willing to work with the president is fine, but don’t count on a favorable response and don’t give away the store if he does agree to engage.
•Defunding – this strategy is worth considering as a last resort, but it certainly can’t work until the next Congress, when Republicans will control both houses. For now, offer a “clean” extension of the Continuing Resolution (which currently runs through December 11) until, say, March 1.
•Litigation or impeachment – unless a substantial number of Democrats are willing to support such measures, forget it!
•Legislation – you will control both houses of Congress next year, so start working on the immigration law changes that you think should be made. The work can be done in a piecemeal fashion, there’s no need for another mega bill like GovCare, GovFinance or S. 744. Allow time for debate and be open to amendments if they make sense. If the bills are successfully filibustered in the Senate or vetoed by the president, you will at least have established a record of trying to get something done that can be pointed to in 2016.