The curious case of GOP objections to executive action

As President Obama prepares to take executive action on immigration, Republican critics in Congress are calling this the latest sign of dangerous overreach by a president they have called monarchical or even dictatorial. They are preparing a lawsuit, debating the merits of another government shutdown. Some are talking about impeachment.

President Obama’s actions are certainly politically controversial, and Republicans have the right to choose political responses to his action — including passing legislation to set their own priorities, holding up nominations and using the power of the purse (including, and up to, forcing a government shutdown). Of course, Republicans will also have to make their own political calculations as to how any responses they take will play out. Who will be seen as overplaying their hand — Obama or congressional Republicans?

{mosads}From a legal perspective, however, Obama is likely to be on solid ground with respect to what he plans (though this depends on the specifics, of course). If Obama announces more deferral action on deportation — in other words, temporary protections along the lines of what he did in 2012 for certain undocumented immigrants originally brought to the U.S. as children — he can argue that he is simply exercising prosecutorial discretion, setting priorities as to how to enforce the law without actually making new law. In fact, Congress has already arguably recognized such discretion through existing statutory language. However, if he goes further than deferral by seeking to permit undocumented immigrants to stay in the country permanently and/or assigning them some legal status (e.g., work permits), he would exceed the bounds of prosecutorial discretion. We won’t know for sure what he plans until tonight, and there are conflicting reports as to what the president has in mind.

If Obama does limit his action to additional deferrals, he may be making a political miscalculation of his own, but charges that he is breaking free of legal restraints by taking action on immigration would be overblown. That doesn’t mean Congress would be powerless to act — it has a number of tools available that don’t involve going to court. As Sen. Ted Cruz (R-Texas) observes, Congress can use its power over spending to attempt to pressure the president into changing course (up to and including by forcing a shutdown of the government). The Senate could (as Cruz also suggests) refuse to confirm presidential nominees. Congress could additionally hold hearings and otherwise attempt to generate public opposition to presidential action. It could draft new legislation aimed at removing any room for presidential discretion over enforcement of immigration laws.

It’s clear that many congressional Republicans are ready to take some or all of these steps — or even to contemplate impeachment and removal from office. Just as Obama has legal authority to exercise prosecutorial discretion by expanding deferral actions, Congress has legal authority to use its powers over spending, appointments, oversight and lawmaking.

If Congress’s real objection, however, is presidential overreach, it is curious that Republicans are only willing to unleash their broad arsenal of powers in response to what may well be a legally uncontroversial decision by the president when there are other presidential actions that raise much more serious legal concerns. In the area of national security, Congress has allowed Obama to operate without restraint — whether that means deciding when to order the use of military force, ordering the targeted killing without judicial process of a U.S. citizen who was a suspected terrorist leader, or engaging in mass surveillance, including bulk metadata collection. When it comes to national security, there is a real case to be made that Obama is operating free of meaningful constitutional or statutory restraint. Obama’s defenders would argue that he is simply doing what other presidents have done since Truman. That may be true, at least to an extent, but it is not a justification. The fact that other presidents overstepped legal bounds does not give Obama authority to do the same.

The question is: Why is Congress taking up a weaker case by arguing that President Obama is unrestrained by law in the domestic context while ignoring the real problem of presidential overreach in the realm of national security? Congress ought to insist on its constitutional role in the area of national security, beginning by voting up or down on legislation to authorize military action against the Islamic State in Iraq and Syria (ISIS). Congressional critics of the president are right that there must be meaningful limits on the executive branch in a constitutional republic. But it is up to Congress to make sure those limits are applied where they are really under threat — in the context of national security and the national response to terrorism.

Edelson is an assistant professor of government in American University’s School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.