Coyote Blog

First, congrats to many millions of people who can remain in this country, a status they should have always have had.  We can argue whether anyone who makes his or her way over the border should be able to vote or draw benefits, but there is no doubt in my mind that they should be able to live anywhere they can pay the rent and work anywhere that there is an employer willing to pay them.

I am willing to accept the analysis of folks like Ilya Somin who say that the President's non-enforcement decision on immigration laws is legal.  But I think his concept of "precedent" when he says there are precedents for this sort of thing is way too narrow.  This is an important, dangerous new precedent.

What I think folks are missing who make this argument about precedent is that while many examples exist of the Executive Branch excercising proprietorial discretion, the circumstances are without precedent in both scale and well as in its explicit defiance of legislative intent.  One can argue that Reagan's executive actions vis a vis immigration provide a precedent, for example, but Reagan was essentially following the intent of then-recent Congressional legislation, arguably just fixing flaws with executive orders in the way that legislation was written.  What he did was what Congress wanted.

The reason I think Tiberius Gracchus is a good analog is that Gracchus too took actions that were technically legal.  Tribunes always technically had the legal power to bypass the Senate, but in hundreds of years had never done so.  Despite their technical legality, his actions were seen at the time as extremely aggressive and plowing new Constitutional ground, ground that would soon become a fertile field for authoritarians to enhance their power.

Somin includes the following, which I think is an example of where defenders of the President's process (as different from the outcomes) are missing reality.  He writes:

I would add that the part of the president’s new policy offering work permits to some of those whose deportation is deferred in no way changes the analysis above. The work permits are merely a formalization of the the president’s exercise of prosecutorial discretion here, which indicates that the administration will not attempt to deport these people merely for being present in the United States and attempting to find jobs here. They do not purport to legalize their status, and the policy of nondeportation can be reversed at any time by the president or his successor.

This is one of those statements that are technically true, but totally obtuse at the same time.   Issuing formal get-out-of-jail-free cards to 5 million people is unprecedented.  Think of it this way:  Imagine a Republican President who is opposed to the minimum wage.  The Executive branch is tasked with enforcing that law, so wold the folks defending the President's methods also argue hat the government can issue permits to 5 million businesses allowing them to  ignore labor law?  Or emissions standards?  Or insider trading laws?

People are just being blinded by what they rightly see as a positive goal (helping millions of people) if they fail to see that the President issuing licenses to not be prosecuted for certain crimes is a huge new precedent.  Proprietorial discretion is supposed to be used to avoid patent unfairness in certain cases (e.g. the situation in Colorado with conflicting state and Federal laws on marijuana).  It is not meant to be a veto power for the President over any law on the books.  But I can tell you one thing -- it is going to be seen by future Presidents as just this.  Presidents and parties change, and for those of you swearing this is a totally legal, normal, fully-precedented action, be aware that the next time 5 million wavers are issued, it may well be for a law you DO want enforced.  Then what?

Update:  Libertarians are making the case that the Constitution never gave Congress the power to restrict immigration.  I could not agree more.  However, I fear that will have zero impact on the precedent that will be inferred from all this.  Because what matters is how the political community as a whole interprets a precedent, and I think that this will be interpreted as "the president may issue mass waivers from any law he does not like."  Now, since I dislike a hell of a lot of the laws on the books, perhaps over time I will like this precedent.  But the way things work is that expansive new executive powers seldom work in favor of liberty in the long run, so I am skeptical.

It is with mixed emotions that I greet this day.  Frequent readers will know that I long for a system of much more open immigration.  I don't think that the US Government should be limiting who can and cannot seek work or live within the US borders (setting rules for citizenship and receipt of benefits are different matters).  So I would like to see many long-time immigrants legalized today (and in fact I likely have friends and acquaintances who will benefit, though it's always been a bit awkward to ask them about immigration status).

However, I would MUCH rather see a rational process implemented than these once a decade amnesties we seem to go in for instead.

I also worry that Obama is taking these actions for all the wrong reasons, seeking to add 5 million Democratic voters rather than trying to help 5 million people who are seeking prosperity.  The reason I suspect this is that he is also seeking higher minimum wages that will likely make it harder for these folks to find work, likely something he has promised to his union allies so they won't freak out.  I have always said that Republicans want immigrants to work but not vote and Democrats want immigrants to vote but not work.

But I am much more worried about the un-Constitutional process that is going to be followed.  Of course, this is not the only Executive power grab over the last two presidencies, but it is a big one and one of the first where the President has admitted he doesn't have the power but is going to do it anyway.

Around 133BC, Tiberius Gracchus was ticked off that the Roman Republic would not consider necessary land reform.  I am going to oversimplify here, but in their conquests the Romans had grabbed a lot of new territory and by law that land was supposed to be parceled in small sections to lots of individual land holders.  Instead, powerful men (many of whom were in the Senate) grabbed the lion's share of this land for themselves in huge estates.   Gracchus rightly saw this as unfair and a violation of law, but it was also a threat to the security of the nation, as independent landowners who bought their own weapons were the backbone of the Roman army.  The shift of agriculture to huge estates staffed with slaves was not only forcing a shift in the makeup of the army (one which would by the way contribute to the rise of despotic generals like Sulla and Caeser), but also was creating social problems by throwing mobs of unlanded poor on the cities, particularly Rome.

Anyway, the short version is that Tiberius Gracchus had good reason to think these reforms were important.  But traditionally they would have to be considered by the Senate first, and he was too impatient to wait that process out, and besides (probably rightly) feared the Senate would find a way to kill them.   He was so passionate about them that he violated the (unwritten) Roman Constitution by ignoring the Senate and setting new precedents for using his position as Tribune to pass the new laws.  It was absolutely the prototype for a well-intentioned bypassing of the Constitution.  I won't go into detail, but Tiberius was killed at the behest of some Senators, but his brother picked up his mantle 10 years later and did some similar things.  Which is why we talk of the Gracchi brothers.

In the near term, the results were some partial successes with land reform.  However, in the long-term, their actions really got the ball rolling on what is called the Roman Revolution.  A hundred years later, the Republic would be gone, replaced with a dictatorship.  Step by step, the precedents often set initially with only the best intentions, were snatched up and used by demagogues to cement their own power.  In later years, what gave emperors their authority was a package of powers granted to them.  One of the most important was "tribunition" power.  In essence, the tribunition power included many of the powers first exercised aggresively by the Gracchi brothers.  More than just starting the ball rolling on the Revolution, they pioneered the use of powers that were to be the core of future emperors' authority.