The most central principle at stake in President Obama’s executive order on immigration is much bigger than border security, amnesty, or precedents for executive orders. It’s where the executive’s power ends and the legislature’s begins.
By declaring he will not only defer prosecution of up to 5 million illegal immigrants but will grant them benefits such as work permits too, Obama is not acting on executive authority alone. He is not merely deciding who will and won’t be prosecuted for the crime of illegal immigration, but also setting policy about what the government will give those people as a result of their non-prosecution. This is akin to not only deciding not to prosecute someone for shoplifting chewing gum, but then giving them a candy bar from the store, too.
But the biggest dilemma is the one this presents to a future president, particularly a Republican one. If a Republican is elected president in 2016 and proceeds to use Obama’s precedent on immigration to order policy changes on other issues — as I outlined earlier — he or she would be equally complicit in the gradual erosion of our carefully balanced system of government. But declining to follow that precedent in the name of restoring the constitutional order is also dangerous: Now that we have seen Democrats are willing to break new legal ground in this respect, as they previously did by eliminating the filibuster for certain presidential nominations, we have no reason to believe future Democrats won’t do the same. The GOP acting alone to restore order potentially amounts to unilateral disarmament. Choosing between that or a destructive one-upmanship is a depressing prospect.
In fact, they don’t have to choose between those options. There is a third option: Make this presidential approach fail. And Congress can do that by responding to Obama’s extreme use of prosecutorial discretion with an equally aggressive use of the power of the purse.
Here’s what Congress would need to do:
1. Break up appropriations into much smaller chunks. This is the way spending bills are supposed to be handled anyway, but the gridlock of the past few years has resulted in the House and Senate passing “omnibus” continuing resolutions that spending for the entire government at once. This is an effective abdication of the power of the purse; it removes the ability of Congress to set priorities; and it sets up high-stakes showdowns when disagreements arise, leading in some cases to government shutdowns the public has grown weary of. It doesn’t have to be this way. Instead, Congress should return to the traditional practice of sending the president a series of smaller appropriations bills. I’d go even smaller than in the past: one bill every week or two, until everything is covered.
2. Prioritize the bills in a way that reflects the principles of a limited federal government. Start with defense, then the judiciary, and so forth. Early on, pass a bill funding Social Security and Medicare, to ensure that Obama can’t claim retirees are in peril, as well as one covering debt-service payments so that the threat of default is taken off the table. Proceed on down the line until two areas of spending (see below) are left.
3. Maintain current levels of spending in these bills. This might rub some conservatives the wrong way, but Congress can only fight one battle this big at a time. (This doesn’t mean other, non-appropriations bills regarding other issues can’t be passed along the way.) In any case, holding spending steady, with perhaps a few relatively small and non-controversial exceptions, while revenues rise due to a growing economy will end up shrinking the deficit. The point is not to give Obama an argument for vetoing appropriations bills because Congress is trying to shrink the government; this is part of a strategy which has to be airtight if it’s to succeed. The fact that budget bills can be passed by the reconciliation process means they don’t require 60 votes — including some Democrats — to move forward.
4. After funding everything else, save two items for the end. First, the Immigration and Customs Enforcement, or ICE. Break down that department’s spending into even smaller chunks, ensuring that enforcement activities are funded but that what Obama wants to do to fulfill his executive order is not.
Second, White House operations. This is where Congress can make Obama feel its power of the purse most acutely. Defund the chef. Defund the cleaning staff. Heck, defund the utilities; pay the president his salary and tell him the vast, vast majority of Americans manage to keep the lights on and food on the table with a lot less than $400,000 a year.
Defund Air Force One. The Constitution says nothing about a presidential obligation to make trips outside Washington, D.C. If Obama feels the need to make a trip, he can request the funds for that specific trip from Congress. If the trip is overtly political — say, a DNC fund raiser — Congress can decline and he can pay for the trip with campaign funds. If the trip is justifiable, Congress should appropriate only as much as is actually required for the president to conduct the relevant business in a secure manner.
In short, defund all the trappings of power that have helped build the presidency into the larger-than-the-Constitution entity it has become. And keep it up as long as he insists on trying to carry out this executive order.
If it doesn’t work in the first year, then in the second year proceed to defund other priorities of his, including Obamacare. Pursue this strategy aggressively enough, and the president won’t be able to maintain his gambit.
The presidency, contrary to popular belief among liberals when a Democrat is in office, is not superior to the Congress. If anything, the Founders’ placement of the legislative branch in Article I of the Constitution suggests it is Congress that is first among equals, not the president. The reason for that arrangement very clearly was to avoid situations like the one in which we find ourselves today.
I don’t know if GOP leaders have the fortitude to launch such a response, much less see it through. It’s much easier to file a lawsuit that won’t work, refuse to work on other issues, and talk, talk, talk about how they collectively are the president’s equal.
Don’t tell Obama that Congress is co-equal. Show him.