We are a nation of laws and not of men.
That’s what we tell ourselves, anyway. But when that system of laws breaks down, what happens?
President Barack Obama recently indicated that his administration would end the deportations of Hispanic young people who were brought to America by their parents, and who have gone to school, served in the military and stayed out of trouble. One might wonder why such people were on anybody’s list to deport before, but that’s beside the point.
Legal? Certainly the administration can set priorities, choosing to deport criminals or repeat offenders before law-abiding immigrants. But make no mistake: This is not amnesty. These young people still have no pathway to citizenship, and, if this or a future administration changes its mind, they are still eligible for deportation.
Obama and his Democratic allies have tried to fix that permanently (and, it must be said, constitutionally), with the DREAM Act, but they’ve been opposed by Republicans every step of the way. (Some of those same Republicans, including presidential hopeful Mitt Romney, now have the gall to wonder aloud why Obama didn’t do more when Democrats controlled Congress. But when they tried to pass the DREAM Act, Republicans prevented it from coming to a vote.)
This isn’t the first time Obama has resorted to extraordinary measures to push his agenda, either. He decided unilaterally that the Department of Justice would no longer litigate in support of the Defense of Marriage Act (DOMA), which excludes gay people from marrying. He decided – again, unilaterally – that the Yucca Mountain project would not be the nation’s nuclear waste repository after all. And he appointed Richard Cordray to the position of director of the Consumer Financial Protection Bureau using a recess appointment, notwithstanding the fact that the Senate was not technically in a recess at the time.
The president’s duty
We’re a nation of laws, and the U.S. Constitution says (in Article II, Section 3) that the president shall take care that the laws are faithfully executed. But in case after case, Obama has not done that.
Now, don’t get me wrong: In each and every case, I agreed 100 percent with the president’s actions. I think the DREAM Act is literally the least we can do when it comes to comprehensive immigration reform. Bolder steps – including a pathway to citizenship for all immigrants now in the country unlawfully – are long overdue, and most reasonable people (including Republican businessmen) recognize that. I think DOMA was a stupid, discriminatory law that stains the U.S. code, and should never have been proposed or signed into law (by President Bill Clinton, BTW). I think the Yucca Mountain repository is a terrible idea, both for Nevada and for every community along a waste transport route. And I think it’s galling that Republicans would refuse to confirm Cordray for his job, especially after they’ve acknowledged he was qualified for the position and their real motive is to obstruct the administration of the laws.
So why quibble over how Obama is going about doing his job, if I approve of the results? I already told you: We’re a government of laws, and not of men.
How can Democrats cheer the lack of enforcement for DOMA or Yucca Mountain, but then condemn Romney when he says he will use executive orders to not uphold the Patient Protection and Affordable Care Act? All are laws duly passed by Congress, and neither has yet been repealed or declared unconstitutional by a court. (Those are, by the way, the only two legitimate ways a law may be disturbed in our system.)
Obama may not like Yucca Mountain, but it is still the law of the land, just as it has been every single day since 1986. Instead of defunding it and ignoring the law, the correct course of action is to repeal it!
Otherwise, what’s to stop the next president from changing his mind, and resuming enforcement of DOMA, funding of Yucca and deportation of all immigrants in the country without authorization, regardless of how they came to be here? A law can’t be a law one day and not a law the next, depending on who shows up for work in the West Wing. That’s a dictatorship, not a democracy.
Desperate times, desperate measures
To be sure, I understand why Obama has done what he’s done. Perhaps more than any previous president, he has faced unprecedented obstruction of his agenda from a Republican Party whose leaders candidly acknowledge their No. 1 goal is to defeat him, not to solve the problems facing the country. Obama has faced questions to his very legitimacy, and is still called a socialist by the politically illiterate. The opposition won’t even confirm his qualified nominees, all in the name of denying him a victory.
So, it’s understandable that the president would think he ought to resort to extraordinary measures, as he deals with a party that contains some members who frankly acknowledge they are there to obstruct governmental administration in every way possible if they can’t have their way.
For example, in the Cordray case, Obama sought to overcome a tactic invented by Nevada’s own Harry Reid, which saw the Senate gavel an empty chamber to order for 30 seconds or so of non-business, and then recess for three days. These so-called pro-forma sessions prevented the George W. Bush administration from filling vacancies using recess appointments, because the Senate was not, technically speaking, in recess.
So, using a pretzel-twisted opinion from the Justice Department’s Office of Legal Counsel, Obama fudged the definition of “recess,” saying the Senate wasn’t actually able to provide advice and consent to the president’s nominees, and thus a recess appointment could be made. The move was notable for two unfortunate reasons: One, it practically begged a legal challenge of Cordray’s authority, which was filed last week.
But two, it begged a more esoteric but still relevant legal question: What if the Senate is organized and ready for business, physically present in their desks, but unable because of partisan bickering to process a nominee? Are they not just as incapable of providing advice and consent as if they were sunning themselves on the beach? Could the president thus make a recess appointment anytime under his own counsel’s opinion?
Good politics, but not good policy
Certainly the president is practicing good politics. Not only does he appear to be fighting obstructionist Republicans by doing something when they would obviously prefer to do nothing or to pass bills without any bipartisan consensus, but he also shores up the support of various interest groups, including gays, Hispanics and voters here in Nevada.
But there is a right way and a wrong way to go about making change in the country. Yes, the constitutional way is difficult, by design. The process was meant to force consensus and compromise, similar to the consensus that resulted in the Constitution itself. Yes, it requires much more effort. And yes, I freely admit it requires politicians of both parties who value the good the nation above the good of themselves or their party. When those things fade, the system tends to grind down.
So it’s the obligation of the president, and of all leaders really, to articulate a vision for the country that inspires people, not just in the halls of Congress, but in the nation as a whole. It requires clear and direct communication, and sometimes, it requires a little political ass-kicking. (Can you see the president visiting the districts of reluctant members of Congress, selling his agenda? Can you see him personally asking the constituents of do-nothing, foot-dragging senators and representatives to flood their member’s office with calls, letters and personal visits? Obama, by all accounts, has shown a distaste for the arm-twisting side of politics at which predecessors such as Lyndon Baines Johnson were so adept. But that kind of action is necessary in American government, and, as it turns out, necessary for American government.)
And you know what? The president knows this. In a Univision Town Hall broadcast from Bell Multicultural High School in Washington D.C. in March 2011, he was asked about using executive orders to end deportations. And this is what the president said:
With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed — and I know that everybody here at Bell is studying hard so you know that we’ve got three branches of government. Congress passes the law. The executive branch’s job is to enforce and implement those laws. And then the judiciary has to interpret the laws.
There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as President (emphasis added).
That does not mean, though, that we can’t make decisions, for example, to emphasize enforcement on those who’ve engaged in criminal activity. It also doesn’t mean that we can’t strongly advocate and propose legislation that would change the law in order to make it more fair, more just, and ultimately would help young people who are here trying to do the right thing and whose talents we want to embrace in order to succeed as a country.
And while Obama has done the first part of that — make a decision to de-emphasize enforcement for DREAM Act-eligible people — he’s yet to be able to accomplish the latter part of it, strongly advocate and propose legislation to change the law. It’s not for a lack of trying, to be sure. But it’s something that’s still yet to be done.
The fact is, it’s not just what we do that matters, but how we do it. That’s a unique facet of American democracy, ever true even when your opposition has apparently decided they hate you and will do anything they can — even burn the entire system to the ground — to prevent a duly elected president from carrying into execution that which he promised on the campaign trail.
In the end, the constitutional way is the only way
But in the end, the only way to make real and lasting change is through the system, not going around it. Yes, DOMA will languish undefended in the courts. Yes, Yucca Mountain will limp along, an expensive, empty hole in the desert. Yes, immigration deportations will be prioritized. And yes, Richard Cordray sits today in his office at the Consumer Financial Protection Bureau.
Yet, all that could change tomorrow. If Romney, or another Republican four years hence, gets elected, he could declare that DOMA will be defended and enforced, that Yucca Mountain will receive nuclear waste, that all persons in the country unlawfully will be deported if caught and that the Consumer Financial Protection Bureau doesn’t really have a legitimate director. And there will be a perfectly legal basis for every single one of these seismic policy shifts.
Not so if Obama put his considerable political skill and capital to work actually changing the law, the way he did with the Patient Protection and Affordable Care Act, or Dodd-Frank, or with the repeal of Don’t Ask, Don’t Tell in the U.S. military. If we repealed DOMA — by a majority vote in Congress — then it could never be resurrected like a bad horror-movie villain in a new administration. If we repealed or amended the Nuclear Waste Policy Act, perhaps to call for on-site storage and reprocessing, Yucca Mountain would never threaten Las Vegas again. If we passed the DREAM Act — if Obama cajoled, demanded, embarrassed, shamed and finally forced using the specter of political reality to get Congress to act — then DREAMers would never fear going on a foreign trip or getting stopped by a police officer ever again. If Obama had used his constitutional powers to create an actual recess, Cordray’s legitimacy would today be beyond question.
Again, don’t get me wrong. I approve of what Obama has done in each of these cases, because I like the results. But I cannot quiet the voice in my head that says this is not the way to achieve those results, and no matter the politics, ignoring the Constitution and its requirements is never the right way to proceed in America.
Why? Because we are a government of laws, and not of men.