On Saturday, I discussed Vox founder Ezra Klein’s analysis of President Obama’s recently announced executive action on immigration. We basically agree on the motivations for and merits of the policy as policy, and our disagreements on the means of accomplishing the policy relate more to kind than degree.
Yesterday, Vox’s Andrew Prokop argued that a Republican would not be able to use Obama’s move to accomplish much of the Republican agenda. This, I think is misguided. Once a president uses executive authority to implement a major, controversial policy that has been under debate in Congress for almost a decade, especially after his party suffered a substantial midterm rebuke, there is no going back. It is going to be used repeatedly, in ways that both parties find appalling.
Prokop’s first scenario involves President Rick Perry declaring that there would be a 17 percent flat tax and instructing the Justice Department to defer all prosecutions. He cites former Solicitor General Walter Dellinger’s response: “no president can relieve any one American of a statutory obligation to pay taxes. The next president can come collecting– and interest and penalties will be accruing until he or she does.”
First, Obama’s action suffers from the same shortcoming. In theory, nothing legal stops a future Republican president from using the list of individuals signed up for work permits as a sort of “illegal immigrant database” to help focus deportations. In fact, the statute of limitations for most audits is three years, with a practical limit of less than that. Also, just as practical limitations would probably prevent a future GOP president from deporting these individuals, so too would a future Democratic president find it difficult to collect on millions of three-year-old tax bills.
But more importantly, when President Perry walks out the door, he can issue a pardon for everyone who avoided taxes during his presidency. Prokop just sort of breezes past this possibility, asserting that it would provoke a massive public outrage. But what would an outgoing President Perry care? He would do so after the next presidential election. Moreover, millions of Americans would have enjoyed substantially lower tax rates for either four or eight years. The incoming president would have a hard time reverting to a 28 percent middle-class tax rate (this assumes that there would be more winners than losers under the executive order).
Prokop responds to concerns that a future Republican administration could selectively enforce environmental laws in a similar manner. The counters are likewise the same: President Perry could walk out the door with a pardon for Exxon Mobil and all of its officers for fracking violations in Texas all those years. Since the pardon power is plenary, there would be nothing a future president could do about it.
I’ll agree that there already exist possibilities for avoiding the implications of court rulings on environmental precedents, but I also agree that there exist possibilities for prioritizing the deportations of millions to coincide with a controversial piece of legislation that Congress has blocked. The question was whether that power should be exercised, and to what extent exercising it sets a precedent for the future.
The argument about refusing to enforce Obamacare goes much the same way. We get to the nut of the disagreement, however, toward the end:
Vox is wrong and he is an idiot if he doesn’t know it. Such changes in the separation of powers tend to snowball, and if not legally contested, become the new norm. Nor does it makes any difference whatsoever what the political parties are. If Congress and the Supreme Court fail to reign in Obama’s executive overreach, all Presidents hereafter can use Obama’s (“technically legal” via tortuous extreme exaggeration interpretation of “prosecutorial discretion”) precedence to do thew same. There are not two sets of rules: one for Democrat presidents and one for Republican presidents.