Sometime between the end of last week and the beginning of this one, the worm turned against a handful of conservatives—the New York Times’ Ross Douthat, most prominently—who had launched a pre-emptive effort to characterize as “lawless” a deportation policy that President Barack Obama hasn’t even drafted yet. On Friday, Jonathan Adler—one of the conservative lawyers behind a lawsuit that seeks to invalidate Obamacare subsidies in three dozen states—cautioned these conservatives that while “[t]here may well be good policy arguments against Obama’s policies … there’s a strong case the actual law is on the president’s side.”
Then on Sunday, the Times’ editors called out Douthat in all but name, noting that though Obama “has done nothing yet … right-wingers have pre-emptively declared him Caesar, crossing a Rubicon into lawlessness." Search for the words “Caesar” and “Rubicon” here, and you’ll see how thinly they disguised which “right winger” they had in mind.
Drawing fire from all sides, these conservatives can now thank New York magazine’s liberal columnist Jonathan Chait for riding to their rescue. Unlike conservatives, Chait concedes the legal issue, but declares that “the defenses of Obama’s methods seem weak and short-sighted."
Chait’s argument is strangely labored, considering that it amounts to a fairly common counsel of prudence. Would liberals, he asks, be OK with a conservative president using Obama's precedent to achieve right-wing goals? Unintended consequences come with the territory of political confrontation, and in each go-round a subset of observers warn that the aggressors will end up hoist on their own petard.
It’s a perfectly reasonable concern, though I think there’s little evidence suggesting that disarmament deters future escalation. Without stretching norms, the Affordable Care Act would never have passed, and the D.C. Circuit Court of Appeals would remain a conservative court, predisposed to wiping out Obama’s executive agenda. But do we really believe the only reason to worry that future Republicans majorities will go to great lengths to circumvent filibusters is that Dems played hardball in 2010 and 2013?
Disarmament, by contrast, led to the noxious 2011 debt limit deal.
So I don’t generally agree with this line of argument. But Chait’s is particularly unpersuasive, because he mischaracterizes the step Obama is reportedly considering, and draws flawed analogies between “deferred action” for immigrants and actions a future GOP president might take. Here’s his key paragraph.
To imagine how this method might be dangerous, you have to abstract it away from the specific end it advances and consider another administration using similar methods for policies liberals might not like. What if a Republican president announced that he would stop enforcing the payment of estate taxes? Or suspend enforcement of regulations on industrial pollution? Or laws on workplace discrimination against gays and lesbians?
First, I fully expect a future Republican president will do whatever he can to avoid enforcing environmental regulations, much like Bush did. Second, I don’t expect a future Republican president to suspend laws on workplace discrimination against gays and lesbians, because, as far as I know, such laws don’t exist at the federal level, thanks to a conservative minority in the House.
But let’s look at the estate tax. First, it’s important to note that Obama isn’t proposing to “suspend” immigration law. It’s impossible to reconcile Chait’s admission that the action Obama’s considering is legal with the suggestion that he will be suspending the law. He’s rather proposing to direct resources toward enforcing the law against higher-priority offenders. Washington Post reporter Greg Sargent’s expert sources have more here. So the proper comparison isn’t to a Republican president who suspends the estate tax, but to a Republican president who decides to enforce the estate tax against the highest priority offenders—the super-duper rich—rather than the merely exorbitantly wealthy.
I can’t claim to know (yet) whether a presidential administration has identical discretion over tax law as it does over immigration law, so I don’t know whether this would pass the threshold test of legality. I suspect the president has more discretion over the latter than the former, and if deferred action for recently deceased wealthy people were slam-dunk illegal, I would oppose it on those grounds. But assuming President Ted Cruz could plausibly shield estates valued below, say, $20 million from tax, within the bounds of the law, my instinct would neither be to scream “Caesar!” nor to blame Obama for setting a bad precedent, but to note that Cruz was insane. It’d be crazy for any president to apply tax law more leniently to people who hit the estate tax threshold than to regular people who don't accrue much if any wealth, and I believe they’d ultimately lose that fight in the political realm, either through legislation or at the ballot or upon the election of a Democratic president who would resume strict enforcement.
Note, though, that the right's response to DACA 2.0 isn't to press Democrats to vote for the Steve King plan to resume deportation of DREAMers, or to take comfort in the knowledge that a Republican president will undo all this some day, but to scream "lawlessness!" sight unseen. Because, substantively, the politics aren't on their side.
This brings us back to the question of method, which opponents of any action will invariably deploy as shells for their ideological priors. But even a limited debate over procedure isn’t a slam dunk, either for opponents of deferred action, or for those who worry about partisan blowback. Congress gave Obama the discretion he’s planning to use and Congress can take it away. Congress won’t do that, though, just like Congress hasn’t created a pathway to citizenship for eleven million immigrants currently living in the country without authorization. At least not yet. I’m not sure how we get from this impasse to the conclusion that Obama’s establishing a uniquely troublesome norm on purely procedural grounds. By what standard is the broad but legitimate use of enforcement discretion a categorically worse violation of political norms than capricious imposition of the Hastert rule? Is there a number of deferred action beneficiaries past which executive action loses its legitimacy and becomes a dangerous norm violation?
I don’t think you can get there without trespassing into substance and politics. And substantively I think the arguments for deferred action are much stronger—morally and practically—than the status quo. The day after Obama’s order takes effect, almost nothing will change for the vast majority of U.S. citizens, while the beneficiaries (most of whom are unlikely to be deported anyhow) will enjoy much-needed breathing room and glorious new tax obligations. This is part of what makes it a more politically attractive use of discretion than the consequential, conservative alternatives Chait imagines, which entail environmental damage, higher deficits, class warfare, and discrimination.
Moreover, I think we're situated at a unique moment, where there's a compelling and exigent moral case for this kind of supposed "norm violating." Congress is very likely one to three years away from passing a law that will give permanent protection to this same class of people. But it isn't quite there yet. Under the circumstances, Obama's move wouldn't just constitute a judicious allocation of resources, but an eminently humane reprieve for the hundreds or thousands of unlucky duckies who'd otherwise get ensnared in the deportation process between today and the day Congress ultimately gets its act together. And if the politics of immigration change dramatically in the next one two three years, deferred action will disappear along with it.
In this way, it's unlike any other act of discretion I can imagine in the current environment. If Ted Cruz becomes president and his Republican Congress gets to work on a comprehensive tax reform plan that would (among other things) abolish the estate tax, a decision to defer estate tax enforcement through 2017 might make sense (again, assuming legality) to avoid penalizing people who have the misfortune of dying before Cruz can sign the bill. If that bill were to fail, enforcement would surely resume at some point. Norms wouldn't have very much to do with it.
Brian Beutler is a senior editor at The New Republic.