21 November 2014

The Prosecutor-in-Chief and executive discretion

As compromise between the two major parties seems increasingly impossible on a widening field of issues, presidents assert ever more sweeping discretionary powers that allow them theoretically to ignore or override the legislative branch. George W. Bush was much criticized for his various executive orders, by Senator Barack Obama among others. Since then, President Obama has found it convenient if not necessary to claim similar discretionary power in his executive capacity. While Bush asserted the President's right as Commander-in-Chief to use discretion in taking immediate action for national defense before consulting Congress, Obama claims similar discretionary authority in his capacity as chief enforcer of the nation's laws to "defer" the deportation of large numbers of undocumented immigrants. He depends on the concept of "prosecutorial discretion," based on the assumption that law enforcement inevitably must set priorities given inevitably limited resources. The current opposition claims that the sort of discretion the President elects to exercise effectively nullifies policies set by Congress and thus tips one of the balances upon which constitutional government depends. This isn't the first time the Obama administration has been criticized for selective enforcement of laws, but given his new position as a lame duck facing hostile majorities in both houses of Congress next year, his action (or inaction) on deportations strikes Republicans in particular as a provocative act if not a threat to the American political order. Each party in turn, as it gains strength in the legislature, fears that a President of the opposing party will hop on skis and race down the slippery slope to "authoritarian" rule if not outright dictatorship. Each party has been hypocritical when criticizing executive power as exercised by the other, and in defending controversial assertions of executive power by their own leaders. While the prosecutorial discretion principle assumes that discretion is necessary and inevitable, the public can still ask itself exactly how much discretion the President of the United States should have. As Ruth Marcus, a liberal columnist, asks at an admirable distance from partisanship, how would Democrats like it if a future Republican president, acting on his or her discretion, chooses not to enforce the Affordable Care Act's rule requiring everyone to buy health insurance, or any number of "anti-business" environmental regulations? Prosecutorial discretion can justify such choices as easily as it justifies Obama's present course.  If discretion is inevitable, it needn't be the last word. If Republicans feel strongly enough about this, perhaps they can seek something like a writ of mandamus from a court that could compel a president to execute laws according to legislative discretion, respecting the letter and spirit of legislation. And of course, there are always elections, and while Barack Obama doesn't have to worry about those anymore, his party still does.

As for the merits of the President's particular course, he may be pandering to Hispanics but he wouldn't be the first chief executive (as his supporters note forcefully) to take pragmatic discretionary action in face of overwhelming numbers and humanitarian concerns. Ideally, there ought to be a way to debate policy without also having a debate on the desirability of greater Hispanic immigration, but that's entirely up to Republicans. Unfortunately, they seem incapable of making their case without implicitly questioning the fitness of Central Americans for small-r republican citizenship. For the GOP some things never change. While Abraham Lincoln in particular among the GOP founders criticized the "Know Nothing" nativism of his time, the Republican party effectively inherited the anti-immigrant vote the Know Nothings once claimed. Republicans have always accused Democrats of exploiting immigrants by making them clients of local party machines and expediting their naturalization in order to get their votes. For their part, Democrats have told each new wave of immigrants since 1854 that Republicans hate them, and the immigrants have seen little reason to dispute the claim. As more people question the very idea of "illegal" immigration the modern debate has grown more intense, while not as virulent as when most immigrants were Irish. Many people are cheering Obama's discretionary move as a means toward a desired end, while just as many seem ready to take him to court, but the end in this case may not entirely justify the means. The case itself shows us that partisan gridlock and presidential assertion go hand-in-hand. Presidents will feel less tempted to claim worrisome discretion if their parties actually could work with the opposition instead of each party playing an all-or-nothing game. If you fear the rise of an authoritarian executive, the paradoxical fact is that you have to smash the two-party system, but this becomes less paradoxical when it means creating not a one-party state but a true multi-party state or, perhaps even better, a no-party state. Then I could understand people wanting to come here.

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