How Our Democracy Works

The executive actions on immigration that President Obama announced yesterday, and the two kinds of modes in which his administration made the announcement (a presidential speech and a Department of Justice legal memo), highlight the challenge of thinking constitutionally in an age when constitutional thought and legal thought have been almost entirely confused for one another.

The most characteristically Obama-like moment in the president’s speech last night was surely his pausing to lecture the Congress about why his action on immigration shouldn’t distract from work on other matters. “Don’t let a disagreement over a single issue be a deal breaker on every issue,” the president said. “That’s not how our democracy works, and Congress shouldn’t shut down our government again just because we disagree on this.” 

That’s not how our democracy works. Just incredible. If there’s one subject in which this president has made himself an expert it is how our democracy doesn’t work, and in the course of these six years he has brought forward a diverse array of methods of policymaking that aren’t how our democracy works...

The president’s own rhetoric betrayed the difficulty of arguing otherwise. It had all the markers of the announcement of a new program. He said he wasn’t changing U.S. immigration law and wasn’t changing anyone’s legal status and yet he also said he was offering a select class of illegal immigrants a deal: “If you meet the criteria, you can come out of the shadows and get right with the law.”...

The problem was even clearer when the president turned to addressing the question of his authority to act:

What we see here is the president describing his action as legislative in character...

And this, after all, is the basic problem. The first sentence of the first article of the United States Constitution says “All legislative Powers herein granted shall be vested in a Congress of the United States.” All of them...

To recover their prerogatives, they [congressional Republicans ] will need to recover a fuller sense of the constitutional system and their role in it...

The stakes are high. Our constitutional system is falling further out of balance in the direction of presidential excess... For many years now, under different leaders of different parties, the Congress has been ceding power to the president. A move like the executive action President Obama announced last night is a natural consequence of such a trend - it happened not because Congress declined to pass an unwise immigration bill but because the president could imagine that he had the authority to change the nation’s immigration policy himself. That consequence of congressional weakness should also be a wake-up call for Congress. And bringing the system back into balance will require members of Congress to see themselves as charged with doing so - and to understand the Constitution as the purview not only of lawyers and judges but also of the legislature, the executive, and the public. 

That’s how our republic works.