How Our Democracy Works

Article author: 
Yuval Levin
Article publisher: 
National Review Online
Article date: 
21 November 2014
Article category: 
National News
Article Body: 

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. Some of those methods, particularly some of those used to selectively enforce Obamacare, have offered even more stark and obvious examples than this immigration action of failures to uphold the president’s obligation to take care that the laws be faithfully executed. The action announced last night did not break new ground in terms of failures to carry out the law, I think. Where it broke new ground, rather, was in encroaching upon Congress’s turf...

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.” Of course, people who take his deal wouldn’t be any more right with the law after taking it than before. They would be treated differently by the agencies enforcing that law because the president would like to treat them differently. But the president and his speechwriters understandably could not resist describing that change in treatment as effectively a change in status. 

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

And to those members of Congress who question my authority to make our immigration system work better or question the wisdom of me acting where Congress has failed, I have one answer: Pass a bill. I want to work with both parties to pass a more permanent legislative solution. And the day I sign that bill into law, the actions I take will no longer be necessary.

What we see here is the president describing his action as legislative in character. If Congress questions his authority, it should act where he has acted; if Congress acts then his own action would be deemed unnecessary. He is saying he has stepped into a legislative space that Congress has declined to occupy.

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. The key question about the steps the president announced last night is whether they can be plausibly described as faithfully executing an existing law or whether they are instead best understood as effectively making law.

The administration’s lawyers in the Office of Legal Counsel at the Department of Justice have done their best to make the former case—and the document they produced is worth your close attention....

But in speaking to the public at large, the president of course could not ignore the larger realities of the immigration debate, and therefore could not avoid justifying his actions in terms that paint them as essentially legislative. This has been the rub of this debate from the start: If the Constitution is merely a technical legal document, it might (perhaps) be possible to defend this action as somehow within the bounds of the president’s enforcement discretion. But because the constitution creates a political order—a structure for the political life of an actual society—it is very difficult to sustain such a defense in the real world. That combination of factors means that a judge might well sustain the president’s action as minimally defensible if it was challenged in court but the Congress cannot consider it so. And both would be playing their proper constitutional roles... 

To recover their prerogatives, they [congressional Republicans ] will need to recover a fuller sense of the constitutional system and their role in it. That doesn’t mean shutting down the government and taking maximal measures at every instance, but it does mean asserting their constitutional authority and looking for ways to use it to push back in an effort to advance their own understanding of what the proper balance should be. 

That suggests that the congressional response to this presidential action cannot be nothing...

It is important to see that passivity by the party’s leaders leads not just to underreaction but also to overreaction...

The stakes are high. Our constitutional system is falling further out of balance in the direction of presidential excess, and it is so not only because of this president and prior ones but also because of this congress and prior ones. 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.