Immigration is a highly contentious issue, and the president’s decision to ignore Congress signaled that we had arrived in uncharted constitutional territory. Obama took it a step further in November 2014 when he announced that an additional four million aliens would be exempted from the threat of deportation. This was so breathtaking an extension of presidential power that even the Washington Post, usually a reliable presidential courtier, went out on a limb and began to talk of presidential overreach.
After a February 16, 2015 decision by Judge Andrew Hanen in Texas v. U.S., that program is now on hold. The problem wasn’t the president’s decision not to enforce the immigration laws. Rather, Obama had erected a new set of rules governing who could be legalized, and crucially had purported to grant the entrants Social Security numbers, work permits and welfare benefits without complying with the notice-and-comment procedure contemplated by federal legislation. For the judge, that was a step too far, though it remains to be seen whether the injunction he granted will survive on appeal. His carefully reasoned, 123-page decision demands to be taken seriously, but it’s still a long shot.
THE LOGIC OF THE GAME
Some critics have called the president’s actions illegal. I have a different definition of what’s legal, taken from Jeremy Bentham’s friend John Austin: laws are commands of a sovereign, backed by force. Obama is effectively the sovereign, and he commands all the guns.
Just who is going to stop him, after all? Executive overreach is a hot potato: a Republican Congress proposes to toss it to the courts through a lawsuit over Obama’s decision not to enforce the immigration laws, and the Supreme Court can be expected to toss it back to Congress, if the future is like the recent past. Under the “political question” doctrine, the Court leaves the other two branches of government to sort out their turf wars. It would be especially difficult, moreover, for the Court to impeach what I call the president’s nonenforcement power, and even if it did so over the immigration waiver, there are a thousand other areas where the president might decline to enforce the laws.
John Locke recognized the problem in the Second Treatise on Government, where he defended what the British called (ahem) the royal prerogative:
Section 160. This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative: for since in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public, or to make such laws as will do no harm, if they are executed with an inflexible rigour, on all occasions, and upon all persons that may come in their way; therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe.
But then, Locke asked, what happens when the King abuses this power and usurps the role of Parliament? In that case, he said, “the people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to heaven.”
Remember the Appeal to Heaven flag? It was hoisted by the new Continental Navy in 1775 at the command of George Washington. No one today is suggesting armed resistance to the sovereign, but what’s left? Ultimately, only the voters. Presidential power is effectively limited only by the requirement of an election every four years. That’s why, when the president takes on Congress, it’s generally over an issue on which he has the voters at his back. And that explains why, for all their huffing and puffing, the Republicans in Congress won’t use all their powers (e.g., courting a government shutdown) to oppose Obama. The result is what the political scientist Theodore Lowi called a “plebiscitary presidency,” in which presidents can act however they want so long as they command the support of the people.
Is that where we are headed? Not necessarily, some observers have argued. James Ceaser in the Weekly Standard and George Will in the Washington Post suggest a game plan for returning to a regime of limited presidential powers. First, they say, let’s elect a Republican president. Then let him rule modestly in cooperation with Congress, as presidents did in the good old days. Future Democratic presidents, having watched how a restrained Republican president governs, will feel bound to follow suit, and they’ll promise to play nice too.
But what is there to prevent the Democrats from welshing on their promise when they return to power? Political parties exist in what Thomas Hobbes called the “state of nature,” where promises are not binding and where “he which performeth first doth but betray himself to his enemy.” A future Democratic president could take the Republicans for patsies and ignore a Republican Congress, governing just like Obama.
The grim logic of the game goes only one direction, and we should not expect presidential restraint by one party to be matched with restraint by the other party. Instead, if one party’s president rules as a king, so too must the other party’s president. The next time we have divided government with a Republican president, therefore, don’t expect him to enforce laws he thinks noxious. When your opponent brings a gun to a fight, then you should bring a gun as well. Not a banana. It’s only the threat of payback that can bring us back to a republican form of government where presidential power is limited.
A similar logic has led some conservative legal scholars to propose an activist litigation strategy in order to roll back liberal judicial precedents. Don’t just accept where we are, they say, but raise constitutional arguments to promote a liberty agenda; otherwise the legal regime will become a one-way ratchet in which liberal decisions are frozen in place once adopted. That’s how the conservative activist would treat the third branch of government (the courts), and what I propose is the same strategy for the second branch (the executive).
The threat of payback just might lead Democratic presidents to pull back from exercising kinglike powers. Or not. It doesn’t seem to have deterred Obama in any way. One president may feel little concern about how future presidents use their power, even with respect to a Congress led by his own party. It’s his time in the sun, so why not enjoy it? There isn’t much incentive for a president to attempt to stop a cycle of payback. That helps explain the empirical findings presented in Chapter 6 of this book, showing that presidential regimes are bad for political liberty. One strongman president is followed by another. Not Harry a Harry succeeds, but Amurath Amurath.
OUR HAMILTONIAN REPUBLIC
The French have Montesquieu and Rousseau, the British have Hume and Mill, and we have Madison. One goes with what one has. And Madison did give us the strongest defense of divided government in the Federalist Papers. Our system of government is often described as a “Madisonian republic,” but in fact it wasn’t one at its birth, and it certainly isn’t one now.
Virtually everything that Madison proposed in the Virginia Plan was rejected by the other delegates to the 1787 Constitutional Convention in Philadelphia. Madison favored a strong national government, but what emerged from the convention was a very different kind of constitution, one that owed more to lesser-known delegates such as Roger Sherman. While there would be a much stronger central government than under the Articles of Confederation, in many ways it would still be a vehicle through which the state governments would set policy. State legislators would appoint the senators and would also determine the method for selecting the presidential electors. In most cases, thought the Framers, the state legislators would simply appoint the electors, who would also meet in their respective states and not at some national gathering. Further, the president would in nearly every case be appointed