The First Rule of Amnesty Fight Club

The First Rule of Amnesty Fight Club

Don’t make this a battle between Congress and the president. Make it a battle within Congress.
Robert Tracinski

The latest reports say that President Obama is planning to spring his executive amnesty plan on the nation as early as this week, halting deportations and giving a kind of pretended legal status to millions of illegal immigrants.

President Obama says he’s doing this because Republicans in Congress have refused to act on immigration reform. But of course he’s doing it before the new Republican Congress has even been sworn in. What he really means is that he has refused to negotiate with Republicans on an immigration bill. He wanted to dictate terms and tell Congress what kind of legislation it had to pass. Now that this has failed, he wants to turn immigration into an advantageous political issue, rallying Hispanic voters to support the president against the new congressional majority.

This is intended to put Republicans in a bind about how to respond, and the general view is that there are no good options. A retaliatory government shutdown, defunding the White House, toothless lawsuits, or impeachment—all of them have serious drawbacks. But if the Republicans simply lie back and do nothing, they risk alienating many of the voters who just gave them a big majority.

I propose a better option. It starts with recognizing the first rule of Amnesty Fight Club.

Those who saw the deeply odd 1999 movie remember that the first rule of Fight Club is: “You do not talk about Fight Club.” (The second rule: “You do not talk about Fight Club.”) The first rule of Amnesty Fight Club is: Do not talk about amnesty. The second rule: Do not talk about immigration.

Why? Because this isn’t about amnesty or immigration. It’s about executive power. And Republicans need it to not be about immigration.

That’s what Obama wants. That’s what he’s counting on. On the left, the conventional wisdom—if you can call it that—seems to be that Democrats lost the midterm elections because they didn’t get enough turnout from Hispanic voters. An electoral strategy that depends on huge advantages and big turnout from a couple of racial minorities is precarious and disturbingly dependent on racial appeals. We can see that in the fact that Obama now finds it necessary to tear up the Constitution just to scare up a few more Hispanic voters in the next election.

Obama lost ground with Hispanic voters in large part because he ignored one of their biggest concerns. For many Hispanic voters, immigration reform is about the fate of their friends, neighbors, and family members, and more: it’s about whether they feel that people like them are welcome in this country. Yet for six years, while Obama spent down every last dime of his political capital, he never bothered spending any of it to get a deal on immigration. Now he thinks he can buy back the Hispanic vote with an executive order that will let them stay in the country merely on his say-so, without any backing in actual, binding law.

Maybe they’ll fall for it, maybe they won’t. But why take the bait? Why risk alienating Hispanic voters by accepting the role President Obama has set up for Republicans as “The Party That Hates Mexicans”? Moreover, a fight “against amnesty” poisons the future debate among Republicans on immigration reform, which may well involve something the anti-immigration activists can call “amnesty.” So a fight on this issue exacerbates the fault lines within the Republican party, which I am sure is part of what President Obama is hoping for.

In this fight, Republicans need the help of people like me who are big liberal squishes on immigration. (My view: developed nations need more immigrants.) We will stand against executive amnesty because we’re against unilateral executive action, and we can all stick together if the fight is on those grounds.

And there’s something more. Republicans also need to make clear that this is not about attacking Obama. That’s also what he wants, because the left wants to claim that all of this is motivated by mere personal animus against the first black president. That’s the other designated role for Republicans: “The Party That Hates Black People.” So why play along with that smear?

Behind this is a deeper problem. A fight between the legislature and the executive is one that Congress isn’t likely to win. Yes, it can defund some White House activities, which means they’ll shut down White House tours for school kids and blame Republicans. Brit Hume is right about the iron rule of shutdowns: Republicans always take the fall. Or Congress can try to defund amnesty or some other activity they don’t like. But federal funds are notoriously fungible, and Democrats know all about the kind of “shutdown theater” that is used to make spending cuts hit things the public likes, while somehow the president still finds money for his own priorities. Hence that iron rule about Republicans getting the blame.

Besides, Congress passing more laws that are supposed to be binding on the president kind of misses the point, doesn’t it? Existing law is supposed to be binding, and he’s already ignoring it. If he can defy existing laws, why won’t he just defy the new ones?

The fact is that our Constitution provides plenty of mechanisms if Congress wants to stop the president from doing something, but it gives them no real means to make him do something he doesn’t want to do. Short of impeachment, which would not be likely to succeed and which would play into Obama’s goal of personalizing the conflict, Congress can’t control the president by attempting to force his hand directly.

Moreover, I think Obama is personally eager for the conflict. He really thinks the history books will record that he went down in a blaze of glory fighting a defiant battle against evil Republicans. That fits his world view and his grandiose pretensions, and to be honest, it’s just about the only legacy he’s got left.

So what can we do? Just give up and wait him out?

No. But we can fight a battle that’s a lot easier for congressional Republicans, using powers that are fully within their sphere of authority and targeting an enemy that is more likely to feel the pain.

Don’t make this a battle between Congress and the president. Make it a battle within Congress. Specifically, cut off Democrats in Congress. From everything.

Traditionally, our legislative system is not characterized by absolute majority rule. There is a longstanding system of power-sharing, in which the minority still has some role in the system, even if it can’t get its own way. Members of the minority can still sit on committees, draft legislation, propose amendments, participate in official hearings—and in the Senate, they have even had the ability to filibuster legislation and the approval of appointees in the other branches. So long as your party can summon 40% of the vote, it can exercise a minority veto on much of the business in the Senate.

But none of these rules are in the Constitution. They all exist because the majority chooses to allow them to exist, and they have remained in effect through a form of mutually assured destruction: each party knows that it might someday find itself in the minority, so it has an interest in making sure that it won’t be totally disenfranchised when it gets there.

In the Senate, Harry Reid has already breached this mutually assured destruction by eliminating the filibuster for judicial appointments and by preventing Republicans from moving any of their own legislation. The Democrats are not-so-secretly hoping that now that they are about to be in the minority, Mitch McConnell will restore the old rules and everything will be fine.

He should let them know that he would like to do that—if Obama renounces unilateral executive action, on amnesty or on any other issue. If not, then the minority gets cut off from everything. Same in the House: they don’t even get to sit on committees. They will spend the next two years as ornaments, able to do nothing. Maybe Republicans can even cut their staffs and give them the really tiny, out-of-the-way offices.

Of course, Mitch McConnell might be willing to make exceptions for those who choose to caucus with Republicans, like Angus King, the Independent from Maine who now caucuses with Democrats. Or maybe West Virginia’s Joe Manchin might consider a switch in party affiliation to match the political change that’s already happening in the state he represents. You get the idea.

The beauty of this strategy is that it targets people who are likely to fear the damage to their interests and on matters where the congressional majority has pretty much total power if it chooses to use it. Yet as far as the wider public is concerned, this is not a high-profile fight over immigration. It’s an inside-the-Beltway squabble over congressional rules—the kind of boring procedural issue the public usually tunes out.

If Democrats squawk, Republicans have an unanswerable rejoinder. Why should they care about having power in Congress, if the laws passed by Congress are just going to be ignored by the president? If Democrats aren’t fighting for the prerogatives of the legislature against the executive, then they’re just fighting over who gets the personal perquisites. Which is what we’ve always suspected they were really fighting for.

Would this plan work? Perhaps if Republicans inflict enough pain on congressional Democrats, they will eventually put enough pressure on Obama that he gives in. At any rate, this makes it into a fight between an obstinate president and the poor saps from his own party that he’s trying to sacrifice for his own vanity.

And even if it doesn’t work on Obama, this would set up a nice conundrum for the Democratic nominee in 2016. In debates, she can be pressed to answer whether she would pledge to renounce unilateral executive power. If not, then she would be condemning every Democrat down the ticket to more years of irrelevance.

The biggest objection to this idea is the fear of setting a bad precedent, compounding one assault on the American system, the lawlessness of the president, with another, the disenfranchising of a congressional minority. That’s why it should always be clear that the goal is to restore the old system, because the republic is better off for it, and because someday Republicans might be back in the minority again. But it’s worth maintaining a little strategic ambiguity about when the old rules will return, so that Democrats in Congress don’t think they can just wait the Republicans out.

I think this is the best option we have left, if Republicans can be convinced to remember the first rule of Amnesty Fight Club. Don’t talk about amnesty. Make this fight about the one issue it’s really about.

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