I don’t disagree with much that Charles C.W. Cooke writes about President Obama’s immigration law power grab. Cooke is rightly concerned that Obama’s application of prosecutorial discretion on steroids turns the American system of government upside down by making enforcement of Congress’ expressed will dependent on the whims of executive branch officials.
The Obama Rule, as I have been calling it for more than a year now, is a startling change in the way the executive branch operates, and an unwelcome one. But—and here is where Cooke and I part ways on this—I think that, should Obama go through with his expected immigration plan, the next Republican president should apply the same rule to federal laws that he or she opposes.
Cooke fairly summarizes this view, but fiercely opposes it:
As a didactic exercise, this approach is all well and good. And yet, I have of late begun to see some on the Right treating the tactic as more than just idle levity or debaters’ flair. Rather, they have started to mean it. Sean Trende, who is among the most interesting and level-headed writers within the conservative firmament, today proposed on Twitter that the Republican party’s “smart play on executive immigration is to shrug, then have a field day when they next get the presidency.” When I asked him for clarification, Trende told me that the system runs on “norms” and that, once broken, those norms are difficult to reinstate, and he therefore contended that Republicans should acknowledge the power grab and wait patiently until they can utilize it. “I think it is a horrifying precedent being set here,” Trende conceded, “but the die seems to be cast.” Ace of Spades’s Gabriel Malor, another man I hold in high regard, holds a similar view, often expressing excitement at the possibility that Republicans will eventually be able to take advantage of what he terms, cheerfully, “The Obama Rule.”
I am afraid that I consider this approach to be little short of suicidal, and I can under no circumstances look forward to a system in which the executive may pick and choose which laws he is prepared to enforce. On the contrary: I consider the idea to be a grave and a disastrous one, and I would propose that any such change is likely to usher in chaos at first and then to incite a slow, tragic descent into the monarchy and caprice that our ancestors spent so long trying to escape.
The truth is that Trende’s “norm” has already been broken in this case. The Obama Rule was successfully applied by the President when he instituted the Deferred Action for Childhood Arrivals amnesty program. All Obama is doing now, if the leaked reports are true, is creating a sort of super-DACA. This is a difference of degree, but not of kind. And the fiery struggle against this sort of extra-statutory behavior never materialized, not even on the Right.
The President applied the Obama Rule again just a year after he implemented DACA, when he unilaterally and in direct contravention of statute declined to enforce the Obamacare employer mandate. As I explained at the time, Congress directed that the mandate (which is actually an employer reporting requirement) “shall apply to months beginning after December 31, 2013.” The word “shall” in statute is ordinarily taken to be a command, not a matter of discretion. But Obama declared that the Treasury Department, to which the employer reports were supposed to be made, would simply not accept the reports and enforce no penalties for employer noncompliance.
Cooke thus needs to face a hard truth: Obama will probably get away with his super-DACA, just like he got away with DACA and with the Obamacare delays. The constitutional mechanism to stop him—impeachment and conviction—has largely atrophied, and in any case, the incoming Senate would never have the votes to convict. The political mechanism to stop him—holding government funding hostage against Obama’s good behavior—will be a repeat of the failed shutdown strategy of 2013. And the legal mechanism to respond—Speaker Boehner’s still unfiled lawsuit premised on the concept of legislative standing—is a long shot, at best.
Which means that we are living in a crapsack world where Democratic presidents get to make an end run around Congress when they find it convenient to do so. And yet, Cooke writes that Republican presidents should nevertheless voluntarily hold themselves bound to an altogether more restrictive code of behavior. This unilateral disarmament would be political suicide. It leads directly to a world where Democratic programs and policies are easily implemented and enforced, but where Republican ideas face a host of self-inflicted procedural hurdles, followed by the chance that even if a conservative idea were to become law, a Democratic executive could simply ignore it.
The race to the bottom is unfortunate. It would not be my first choice. But the Democrats brought us here and, as Sen. McConnell recently said of the partisan repeal of the judicial filibuster, “it’s hard to unring that bell.” The Democrats are fighting dirty, which means this is no time for Marquess of Queensberry rules.
Instead, because they cannot be reasoned with, Democrats must be shown the error of their ways. There will be no faster route to squealing outrage from the Left than applying the Obama Rule to one of their beloved federal programs. I particularly favor selective enforcement of the Clean Air Act to relieve the regulatory burden on businesses as the most likely candidate to induce Democrats to immediately repudiate the Obama Rule, but I think the case can be made for broad tax reforms as an alternative, particularly if there is resistance to such reforms in Congress. Just as Obama instructed the Treasury Department not to enforce the Obamacare reporting requirement for employers, the next Republican president could instruct Treasury not to enforce, say, income taxes outside certain reformed brackets.
In other words, let the Democrats mount legal and rhetorical challenges against the Obama Rule of a non-executing executive. Maybe they will even be successful at re-instituting the old norm of American government. But if they are not, at least the Republicans will not have preemptively disarmed themselves. Republicans have to be ready to respond in kind.