Legislate, Litigate, or Get off of the Lawn

Created: 20 November, 2014
Updated: 15 October, 2022
3 min read

Let me start by acknowledging my own biases. I believe that President Obama’s announcement tonight that he will not deport some five million undocumented immigrants who meet certain conditions of residency and family status is 1) a humane response to protect real families and real people with compassion and dignity; 2) an economically sound policy that acknowledges workers who have already been absorbed into the economy; 3) a political masterstroke; and 4) probably unconstitutional.

I say probably because I do not know for sure. The line between legislation and enforcement does not come with blinking red lights. Some of the most monumental things that presidents have ever done—like the Louisiana Purchase and the Emancipation Proclamation—have probably been unconstitutional too. Presidents don’t get to decide the constitutionality of their own actions.

But neither does Congress. That is why impeachment talk, in this instance, is a red herring. The President has asserted the Constitutional authority to take this step. He has made a case, with briefs and everything. If Congress were to impeach the president for violating the Constitution, they would simply be replacing one unauthorized interpretation of the Constitution for another.

The Constitution assigns its own interpretation to the third branch of government, the Judiciary, which is kind of the whole point of having a judiciary. If Congress believes that the President has exceeded his authority, then they have a clear, Constitutionally defined course of action: sue the guy. Litigation, not impeachment, is the proper response to the belief that a president has acted unconstitutionally. As I said, I think it unlikely that the President’s executive order would survive such a test.

But I think it even less likely that the test will ever come, since I do not believe that Republicans really want this executive order to go away. They won’t ever say this, of course. The standard political response to situations like this is to attack and criticize, usually with dramatic superlatives (THE MOST TYRANNICAL POWER GRAB IN THE HISTORY OF THE FREE WORLD!!!) that really just say “I have never actually opened a history book.”

But I also suspect that very few people in Congress, of either party, really want to do what it would take to deport these five million people. For one thing, it would be a humanitarian disaster. It would tear communities apart, break up families, destroy settled lives, and incur the wrath of many normally conservative religious factions like Catholics and Mormons who have opposed such a crackdown in very clear terms.

And then there is the fact that it would be bad for business. Really bad. Most of the five million people covered by this action are working in the economy. They are providing much needed labor, at relatively low rates, for the agricultural, hospitality, and other major sectors of the economy. Massive deportations would hurt a lot of the people who pay for Republican landslides.

The steps that Obama took are probably the same ones that any rational legislative process would arrive at. That does not mean, of course, that they are Constitutional. And if Congressional Republicans really believe that the President has crossed the Separation of Powers Line, then they have a moral and legal responsibility to take the matter to the courts. That’s how disputes between the legislative and the executive branches are handled under the Constitution that everybody wants to protect.

If they do this, then you will know that I was wrong. But here’s how you will know that I am right: members of Congress will spend the next few weeks in the highest of dudgeons. They will compare Obama to Hitler and Stalin, they will say that the Republic as we know it is over, and they will say that the Constitution has been irrevocably destroyed.

And when the time comes for them to actually take the matter to court and make their case legally, according to the Constitution’s own mechanism for resolving disputes, they will let the deadlines slip quietly by without doing a thing.

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