Process Is as Important as Substance
By Sean Evans, Chair and Professor of Political Science
Nov 21, 2014 -
In the Schoolhouse Rock video “I’m Just a Bill,” we all learned that the president proposes legislation, Congress can accept or reject the bills, and if Congress rejects the president’s proposals, the president can take unilateral action to implements his proposals.
Wait, that’s not what the cartoon actually teaches. But if President Obama follows through on his promise to protect up to 5 million additional illegal immigrants from deportation, he will be sidestepping the constitutional process and that would set a troubling precedent.
Now, all scholars accept that presidents have the ability “to-go-it-alone.” Presidents since George Washington have taken unilateral action because vague Constitutional and legal provisions produce discretion that allows presidents to fill gaps in the law to claim broader power.
This discretion is broader in foreign affairs because foreign policy power devolved from the King to the nation after the American Revolution and the president is the representative of the nation. Domestic policy power is different because the Constitution divested the states of much of this power and gave it to Congress which limits the president’s discretion in domestic policy making.
The primary concern with President Obama’s unilateral actions is that he is taking unilateral action in domestic policies in ways that the Founders and the Congress never imagined. For example, No Child Left Behind provides provisions for waivers but the Obama Administration uses the waivers to force education reforms on states unsupported in law or states lose a significant portion of their education funding. And while the Treasury Department has historically used transition rules to help affected groups adjust to new tax laws, the Administration uses transition rules to change statutory deadlines in the Affordable Care Act when individuals and groups have had 4 years to transition to the new system. These actions go too far.
Concerning his past and proposed illegal immigrant policies, no one questions that the president has the authority to defer deportations based on prosecutorial discretion nor to issue work permits under the 1986 immigration law.
The concern, however, is with the size of the deferrals, the reasons (gridlock instead of the traditional reasons of civil unrest or natural disaster), and the use of this power to temporarily authorize the DREAM Act and part of the Senate immigration reform bill that the House of Representatives has rejected.
Moreover, these “temporary” programs are not really temporary. No future Republican president would eliminate these programs because the political costs of taking away the legal status of millions of Latinos and deporting them would be unbearable, not to mention unconscionable. Obama’s executive actions are basically legislation by executive fiat.
However, the separation of powers are not an inconvenience but a constitutional requirement. The Founders intentionally created a system of shared power and responsibility to prevent one branch from acting unilaterally, to create a slow, deliberate legislative process, and to force compromise. President Obama’s foregoing of the constitutional process for passing bills and revising laws sets a precedent that future Republican presidents could use to ignore environmental laws, modify entitlements, and institute tax reform because Congress won’t act and that would be just as wrong.
Obama’s policy on legalization is fundamentally correct. However, unilateral action undermines our constitution and the rule of law. Both Obama and Republicans should compromise to get immigration reform done. If they can’t though, waiting longer for immigration reform is a small price to pay for constitutional government.
A slightly revised version of this column originally appeared in the November 23rd edition of The Jackson Sun