The Case Against Obama’s Nuclear Option

Even if reform is needed and legal, endowing the presidency with new, unilateral powers is a dangerous precedent.

National Journal
Ron Fournier
Aug. 7, 2014, 5:59 a.m.

On the is­sues of im­mig­ra­tion re­form and Amer­ica-bolt­ing cor­por­ate “in­ver­sions,” I sym­path­ize with Pres­id­ent Obama’s de­sire to vastly ex­pand the ex­ec­ut­ive branch’s au­thor­ity. By­passing Con­gress may be leg­al. The re­forms he wants may be a good idea. But when I look bey­ond the next elec­tion and set aside my is­sue bi­ases, I re­luct­antly con­clude that it would be very wrong.

De­pend­ing on how far Obama ex­tends pres­id­en­tial au­thor­ity — and he sug­ges­ted Wed­nes­day that he’s will­ing to stretch it like soft taffy — this could be a polit­ic­al nuc­le­ar bomb. The man whose found­a­tion­al prom­ise was unity (“I don’t want to pit red Amer­ica against blue Amer­ica”) could seal his fate as the most po­lar­iz­ing pres­id­ent in his­tory.

Is it leg­al? Treas­ury Sec­ret­ary Jac­ob Lew said last month that after re­view­ing the tax code his de­part­ment de­term­ined that “we do not be­lieve we have the au­thor­ity” to act uni­lat­er­ally against com­pan­ies that re­nounce their cit­izen­ship to take ad­vant­age of friendly tax rates and reg­u­la­tions abroad.

On im­mig­ra­tion, Obama said last month, “ac­tu­ally, I don’t” have au­thor­ity to stop de­port­a­tions. Re­spond­ing to a heck­ler who ar­gued oth­er­wise, Obama said, “The easy way out is to try to yell and pre­tend like I can do something by vi­ol­at­ing our laws. And what I’m pro­pos­ing is the harder path, which is to use our demo­crat­ic pro­cesses to achieve the same goal that you want to achieve — but it won’t be as easy as just shout­ing. It re­quires us lob­by­ing and get­ting it done.”

Im­mig­ra­tion and tax re­form didn’t get done, and the pres­id­ent dis­patched his law­yers in search of loop­holes. Here’s a whop­per: Obama sug­ges­ted Wed­nes­day that the short-term cost of deal­ing with the south­ern bor­der crisis could jus­ti­fy sweep­ing uni­lat­er­al ac­tion on im­mig­ra­tion re­form. “That’s well with­in our au­thor­it­ies and pro­sec­utori­al dis­cre­tion.”

Which brings us to the next ques­tion. Even if act­ing alone is leg­al “¦

Are the pro­posed re­forms a good idea? The in­ver­sion is­sue is com­plic­ated, but I would fo­cus my at­ten­tion on com­pan­ies such as Mylan that profit off U.S. tax­pay­ers while re­noun­cing U.S. cit­izen­ship. Even the CEO’s fath­er — Sen. Joe Manchin of West Vir­gin­ia — thinks that what she did should be il­leg­al.

On im­mig­ra­tion, re­form is a great idea. Con­ser­vat­ive Re­pub­lic­ans are dumb­ing down the defin­i­tion of “am­nesty” to cov­er any act that doesn’t lead to the de­port­a­tion (or self-de­port­a­tion) of the ap­prox­im­ately 12 mil­lion people liv­ing in the United States il­leg­ally. The oth­er ex­treme would be to im­me­di­ately grant them leg­al status and/or cit­izen­ship, and to em­brace un­lim­ited im­mig­ra­tion go­ing for­ward. Both of the scen­ari­os are un­real­ist­ic.

Between those two poles lays an enorm­ous middle ground that would be­ne­fit both parties polit­ic­ally, up­hold the rule of law, and be true to Amer­ica’s his­tory as a melt­ing pot.

Anti-am­nesty Re­pub­lic­ans are al­most ex­clus­ively to blame for the cur­rent grid­lock, de­fy­ing House Speak­er John Boehner and oth­er prag­mat­ic party lead­ers who un­der­stand that the GOP has a grim fu­ture as long as His­pan­ics, Asi­ans, and oth­er non­whites think the Re­pub­lic­an Party hates them.

Obama’s party is partly re­spons­ible for this mess, be­cause of the cyn­ic­al choices made dur­ing his first two years in of­fice to punt on re­form, in part be­cause the Demo­crats who ran Con­gress wanted to be able to por­tray the GOP as anti-minor­ity in the 2010 elec­tions.

Obama denies culp­ab­il­ity, but the re­cord is clear, and al­most any Demo­crat in Wash­ing­ton will con­cede, privately, that the pres­id­ent broke his prom­ise to make im­mig­ra­tion re­form a top pri­or­ity in 2009-10.

For ar­gu­ment’s sake, let’s say Obama is right on the is­sue and has leg­al au­thor­ity to act. The big ques­tion is “¦

Would it be wrong to end-run Con­gress? An­oth­er way to put it might be, “Would more po­lar­iz­a­tion in Wash­ing­ton and throughout the coun­try be wrong?” How about ex­po­nen­tially more po­lar­iz­a­tion, grid­lock, and in­ci­vil­ity? If the pres­id­ent goes too far, he owns that dis­aster.

The most im­port­ant con­text to con­sider is the mood of the coun­try. Eighty per­cent of Amer­ic­ans think the polit­ic­al sys­tem is broken, ac­cord­ing to a new NBC News/Wall Street Journ­al poll, the same per­cent­age that dis­ap­proves of Con­gress. A strong ma­jor­ity think Obama is do­ing a poor job as pres­id­ent. What those num­bers tell me: Most Amer­ic­ans un­der­stand that both parties are re­spons­ible, though not equally, for break­ing polit­ics

In a land­mark study, the Pew Re­search Cen­ter re­cently con­cluded that Amer­ic­ans “are more po­lar­ized along par­tis­an lines than at any point in the past 25 years.” The av­er­age gap in views between Demo­crat­ic and Re­pub­lic­an par­tis­ans has nearly doubled, with most of the in­crease scored dur­ing the Bush-Obama era.

My col­league Ron Brown­stein wrote a wa­ter­shed book in 2007, The Second Civil War, that spoke of this di­vide. “The polit­ic­al sys­tem has evolved to a point where the vast ma­jor­ity of elec­ted of­fi­cials in each party feel com­fort­able only ad­van­cing ideas ac­cept­able to their core sup­port­ers — their “base,” in the jar­gon of mod­ern cam­paigns. But pro­gress against these prob­lems, and al­most all oth­er chal­lenges fa­cing Amer­ica, re­quires com­pre­hens­ive solu­tions that marry ideas favored by one party and op­posed by the oth­er.”

Re­gard­less of the jus­ti­fic­a­tion, act­ing alone denies Obama a full view of the prob­lem and, with no mar­riage of ideas, he al­most cer­tainly ex­acer­bates the “dan­ger­ous im­passe” that Brown­stein labeled a civil war.

New York Times colum­nist Ross Douthat ar­gues that this isn’t merely a case of a pres­id­ent re­spond­ing to a do-noth­ing Con­gress. “It’s lim­ited caesar­ism as a cal­cu­lated strategy, in­ten­ded to both di­vide the op­pos­i­tion and lay the ground­work for more ag­gress­ive uni­lat­er­al­ism down the road.” If you don’t buy any oth­er ar­gu­ment, con­sider this one: En­dow­ing the pres­id­ency with ex­traordin­ary power would be an ex­tremely short-sighted and selfish move.

Do Obama and fel­low Demo­crats really think the Oval Of­fice will nev­er again be oc­cu­pied by a Re­pub­lic­an?