In one of Paul Ryan’s first comments as Speaker of the House, he explained that the House would not seek immigration reform in light of the President’s “Executive orders” that “circumvent[ed] the legislative process.” (They were really executive memoranda, not orders, but you get the idea).
“Look, I think it would be a ridiculous notion to try and work on an issue like this with a president we simply cannot trust on this issue,” Mr. Ryan said in an interview with CBS’s “Face the Nation.” “He tried to go it alone, circumventing the legislative process with his executive orders, so that is not in the cards.”
Then-Speaker Boehner made similar comments last year:
And frankly one of the biggest obstacle we face is trust. The American people and including many of my members don’t trust that the reform we’re talking about will be implemented as it was intended to be. The President seemed to change the health care law on a whim whenever he likes. Now he’s running around the country telling everyone that he’s going to keep acting on his own. He keeps talking about his phone and his pen. And he’s feeding more distrust about whether he’s committed to the rule of law.
There’s widespread doubt about whether this administration can be trusted to enforce our laws and it’ll be difficult to move any immigration legislation until that changes.
One of the unintended, but foreseeable consequence of turning to executive action in the face of a gridlocked Congress is to make Congress even more gridlocked, and less likely to agree to future changes due to a lack of trust. Granted, gridlock suffers from a serious chicken-and-egg problem, but here Obama’s audacious move of announcing DAPA ratcheted up the pressure. The President no doubt hoped that by putting DAPA into effect a few months after the 2014 election, he would create an entire class of aliens who were granted deferred action. In 2016, he likely estimated, the future President would have to deal with whether to renew the deferred status of these aliens. But what the President didn’t anticipate was Texas v. United States. Now, the legality of DAPA may never even be resolved by the Supreme Court–due in large part to the SG’s decision not to seek a stay in May.
This spring, I am going to revisit Gridlock and Executive Power. I wrote it over the summer of 2014, in the wake of Noel Canning, but never published it. There have been so many audacious developments in executive power since then, including DAPA, ISIS, and the blooming fight over the NDAA and Guantanamo. I envision this article as serving a similar function to David Barron’s and Marty Lederman’s two part series in the Harvard Law Review, The Commander in Chief at the Lowest Ebb. These book-length articles were published serially in the Harvard Law Review in January and February 2008. I hope this article will serve as the basis for my next book project (after Unraveled), tentatively titled “A Constitutional History of the United States: 2009-2016.” The goal of this project is to analyze the myriad constitutional disputes that occur outside the courts. Disputes over Bowe Bergdahl’s release and decision to assassinate Bin Laden–as documented in Charlie Savage’s insightful new book–warrant a close constitutional study, even if there is no judicial remedy. If the first book works well, I would love to do this for every Presidency, going backwards to Bush 43, Clinton, Bush 41, etc.
Update: At Outside The Beltway, Steven Taylor calls Ryan’s comment a disingenuous dodge.
- If the Congress thinks that the President is overstepping his bonds on this topic, they best solution would be to pass actual legislation.
- The reason that the President has acted unilaterally is because no legislation has been passed (see #1).
The notion that Congress cannot engage this issue legislatively is because the president in “untrustworthy” (which has been the claim for years now) is a total dodge that covers up the fact that the Congress is utterly unable to act on this issue.
The Congress has been abdicating its responsibility on this issue for quite some time now, and that is not the fault of the executive.
A few response. First, Congress did pass legislation. The Immigration and Nationality Act, and its subsequent amendments. Until new legislation is passed, the President has a duty to take care that the INA is faithfully executed. Congress has no obligation to pass any new laws. The failure to enact new laws is a political mistake (a point I have made in my amicus briefs challenging the legality of the President’s actions), but it is not a constitutional failure. And, as I argue in Gridlock and Executive Power, gridlock and intransigence does not license this unlawful executive action. The Supreme Court’s unanimous decision in Noel Canning made this point very clearly.
Update: Ryan expands in a USA Today editorial:
The House of Representatives will not vote on comprehensive immigration legislation as long asPresident Obama is in office. And the reason is simple: The American people can’t trust him to uphold the law.
He has tried to go around Congress by ordering his administration to create a new legal status for undocumented immigrants. Even a federal district court says he has overstepped his bounds. The first principle of any immigration reform has to be securing our border and enforcing the laws already on the books. But that is the very principle the president has violated….
Especially with this president. Instead of working to build trust, he has destroyed it. Last November, after his party lost control of the Senate, the president decided to circumvent the legislative process by unilaterally granting legal status to 5 million people. He has already demonstrated he is not serious about enforcing the law. Passing comprehensive reform during his presidency would merely render it meaningless.