Megan McArdle: No, Mr. President, you can’t do whatever you want

Megan McArdle (c) 2014, Bloomberg News.

On Sunday, Ross Douthat of The New York Times wrote an uncharacteristically blistering attack on the plan being floated by the Barack Obama administration to quasi-legalize the status of almost half the immigrants who are now in the country illegally. The details remain somewhat vague, but according to the Washington Post, “Ideas under consideration could include temporary relief for law-abiding undocumented immigrants who are closely related to U.S. citizens or those who have lived in the country a certain number of years – a population that advocates say could reach as high as 5 million.”

This is not the first time that the administration has floated this trial balloon, so I think it’s safe to say that it is contemplating sweeping unilateral executive action that would grant millions of undocumented immigrants protection from deportation and issue work permits that would allow them to earn a legal living while they are here – at least, unless the news media or the public pushes back.

I agree with Ross: The media and the public should push back. I say this as someone who is broadly supportive of greater legal immigration, and who has tangled with immigration opponents in the past. Whatever your opinion on immigration policy, I hope it doesn’t involve supporting giving the president extremely broad powers to simply rewrite any law that he thinks ought to be different. To see why, you need only ask yourself a simple question: Would you like to give this power to a president from the opposing party on a law where the two of you disagree?

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The defenses that have so far been mounted of this proto-plan are so far completely underwhelming. There is, for example, the argument that we have to expect this, because Congress is so dysfunctional that the president can’t get any laws passed. But this is a terrible example of congressional dysfunction; immigration bills have been failing in Congress for years now, not because Congress is gridlocked, but because this is a difficult and contentious issue, and there’s not really a ton of political support for increased immigration. Furthermore, polls on this issue seem to be moving in the wrong direction for the president. In this environment, the most functional Congress in the world might very well politely decline to pass a bill that does what the president is proposing.

This has also been compared to Jimmy Carter’s sweeping use of the pardon power to give blanket forgiveness to hundreds of thousands of draft dodgers. That simply won’t fly, because the president unquestionably had the authority to issue those pardons; it’s right there in the Constitution. One could certainly quarrel with the decision to issue those pardons, but not with whether Carter had the right to do so.

Most convincing is the argument that Obama has the right to do this because, after all, the executive branch gets to set enforcement priorities. And yes … but no. At the point at which you are announcing that the law won’t be enforced against a large fraction of the people who are violating it, then you are effectively rewriting that law. Few of the people who are coming up with these justifications would sit quietly while a Republican president, say, announced that he was ending audits and OSHA inspections for small-business owners so that he could refocus resources on earned income tax credit fraud. And if you wouldn’t view that as an acceptable use of the president’s power, then you should not endorse this power grab, either. Immigration is an important issue, one on which I would like to see significant changes in policy. But the rule of law is an even more important one.

The last 15 years have witnessed far too many presidential assertions of unconstitutional authority – and too many members of both parties who were willing to endorse those extralegal actions as long as it was their guy bending the rules. The result is a constant ratchet toward an imperial presidency.

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Am I saying that the dark night of fascism will descend upon us all if Obama goes forward with this? Of course not. There is a lot of ruin in a nation; American presidents have tried these sorts of power grabs before, from the suspension of habeas corpus to court packing to, I dunno, Richard Nixon’s whole last year in office. But do you know why the dark night of fascism never descended? Because long before we got to that point, honorable politicians, journalists and citizens said “Enough.” It’s time for all of us to say that again, loud enough for President Obama to hear it.

Megan McArdle is a Bloomberg View columnist who writes on economics, business and public policy. .