That’s outrageous!
I’ve read both sides of the debate over the recent actions by Obama on illegal immigration. And I can’t decide who’s right. Was it a completely lawful decision by an executive exercising prosecutorial discretion, or an outrageous overreach by an executive who essentially re-wrote the law on immigration?
And that’s exactly the problem. It ought to be possible to tell whether an outrageous abuse of power has occurred. But our system of government in America is based on a hopelessly vague document called the Constitution, which does not clearly spell out who has the power to do what. If we had a parliamentary system like Britain, it would be immediately apparent whether an abuse of power had occurred.
On immigration it is the right complaining of an outrageous abuse of power. But it is pundits on the left who worry that the Supreme Court may rule that the ACA does not allow for the federal government to provide insurance subsidies via federal insurance exchanges. Paul Krugman is already warning that a ruling along those lines would be an outrageous abuse of power. There sure is a lot of abuse of power going around! And once again, this problem would not occur under a parliamentary government. They would respond to any court ruling by simply fixing the language of the law.
As an aside, the immigration decision is a win from the utilitarian perspective. What I don’t see discussed very much is that it is also a win for libertarianism. It will create a small libertopia of about 5 million people right within the US. These people will be terrified of stealing things, for fear of deportation. But they will have little to fear if they don’t violate the property rights of others. They will no longer have to fear the INS—only the groups that all Americans fear (IRS, TSA, NSA, CIA, FBI, local police who need to seize more cash to finance their budgets, and all the other scary groups out there.) And they will have to work to survive–no relying on welfare benefits. That’s not a pure libertopia, but it’s pretty close. In no other time or place did you have legal gay marriage, legal pot, and no welfare. Not even Holland. And yet (formerly) illegal alien communities in many western states will now face that policy regime. I wish them good luck.
PS. Totally off topic, but in another big win for libertarianism, the world’s oldest government monopoly has just collapsed:
Starting in 2016, China will start liberalizing its nearly 2,600-year-old monopoly on table salt””opening up the world’s oldest monopoly to competition at last.
Tomorrow over at Econlog I’ll explain why China will eventually have smaller government than America
Tags:
24. November 2014 at 21:44
In lots of ways that count, Vietnam already has (a smaller government than the US):
http://www.worldaffairsjournal.org/blog/michael-j-totten/last-days-communist-party
A line Angela Merkel apparently likes to use:
Half an hour into every speech she gives, when everyone has fallen asleep, she says three things. She says Europe has just seven per cent of the world’s people, twenty-five per cent of the economic output, but fifty per cent of the social welfare””and we have to change this.
http://www.newyorker.com/magazine/2014/12/01/quiet-german
24. November 2014 at 22:27
I might say that if the president is allowed to continue this sort of overreach, we’ll eventually find him having private meetings where he gives secret directives to rain bombs down on civilian streets in various countries around the globe in a deadly game of global whack-a-mole. But we all know these slippery slope arguments are a kind of fallacy. After all, there would be bipartisan outrage if we got anywhere close to something like that.
25. November 2014 at 00:38
Scott,
It seems to me like it’s a question of why you’re doing it. If you’re making trade offs because of a lack of enforcement resources, it’s a lot different than if you’re doing it because you disagree with the law but don’t have the votes to amend or repeal the law.
25. November 2014 at 00:45
“And once again, this problem would not occur under a parliamentary government. They would respond to any court ruling by simply fixing the language of the law.”
Not quite. Congress could also change this law either before or after a court decision. But control changed hands, and the majority doesn’t want to now. If the same thing happened in the UK, parliament would respond to their court in the same way.
25. November 2014 at 01:16
“I’ve read both sides of the debate over the recent actions by Obama on illegal immigration. And I can’t decide who’s right. Was it a completely lawful decision by an executive exercising prosecutorial discretion, or an outrageous overreach by an executive who essentially re-wrote the law on immigration?”
Scott, I suggest the problem may well be that your confusion stems what the politicians say and what the mainstream media and bloggers say. That’s like learning criminal law from your cellmates. It’s the same sort of confusion that arises when I read about various accounts of monetary policy on the web.
But, on legal issues such as this one, there is a means to achieve relative clarity if you are able to bypass all the crap.
Like every good scholar, you should go to more original, if not the original sources. A good place to start would be to examine exactly what the Executive Action does and does not do. Short answer—not really that much:
http://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2014/11/21/executive-action-on-immigration-links-to-all-the-memos.aspx
The most significant feature is that it expands prior formal guidance on deportation priority (really, mostly existing policy) among various classes within the estimated 11 million illegal aliens essentially giving priority to the remaining 6 million. Common sense and our due process requirements dictate that law enforcement, NHS and the courts couldn’t even begin to tackle that remaining pool.
Did Obama have the legal authority to do all that he did in that Executive Action? The best place to start would be the advice he got from his own lawyers:
http://www.justice.gov/sites/default/files/olc/opinions/attachments/2014/11/20/2014-11-19-auth-prioritize-removal.pdf
Short answer: Not entirely. The memo concludes he did not have authority to defer action on parents of children who are in the US legally. But, Obama decided to ignore his own lawyers and do it anyway. That’s troubling.
On legal issues such as this one, there is a means to achieve relative clarity. Some issues need to be resolved in the courts to achieve absolute clarity. At least there is a process for the latter, but It does not look like that recourse to that will be made in this case:
Here’s a recent lede on the Republican response:
“How did House Republicans respond to President Obama’s speech announcing his decision to circumvent Congress on immigration? They sued him, but not over that.
Less than a day after Obama made his defiant move, Speaker John Boehner finally went through with the lawsuit he had long promised to file over the administration’s implementation of the Affordable Care Act.”
http://www.theatlantic.com/politics/archive/2014/11/house-republicans-finally-sue-obama-over-affordable-care-act-speaker-john-boehner/383047/
This has been a political dispute from day one with overreaching on both sides. Nothing new there. Nor is there anything new about the media and the blogosphere completely clouding the issues, both out of the same political hacksterism combined with large doses of ignorance.
Now that that’s settled, can we finally get some relative clarity on the efficacy of quantitative easing?
25. November 2014 at 03:46
Vivian,
I didn’t actually get all that much clarity from your comment. On immigration you first seem to say that it’s ok bc objectively the order doesn’t do much. Then you imply that the true limits of presidential power can be measured by the memos generated by the White House councils office. I assume this is just for when they disagree with him … Or if their original advice had been ‘go ahead’ then this whole thing would have been fine?
Then we get to ACA. The Supreme Court would not be overreaching to strike down ACA since on some legal issues a final decision in the courts gives ‘absolute clarity’? Uh, ok … But also its been a ‘political dispute from day one with overreaching on both sides’? That sounds like just the kind of systemic failure professor sumner is describing.
25. November 2014 at 04:43
Excellent post. Only quibble is with that last bit about china having a smaller government. Interested to read what you are going to say there. The Chinese government exists to extract resources for the in crowd so while it may be smaller at some point (I highly doubt anytime soon), its still basically a regime built to extract resources so I am not sure that size matters much at all.
25. November 2014 at 04:51
Obviously, millions of illegal aliens can enter the United States in any year. It does not matter what the President does or what Congress does. It does suggest the threat of terrorism is hyped by about 1000 to 1.
25. November 2014 at 05:11
Nick,
Your comment is a combination not comprehending plain english and what appears to be intentional obfuscation.
“On immigration you first seem to say that it’s ok bc objectively the order doesn’t do much.”
I think it is fair to say that my comment states the Executive Action is not a particularly big change from the status quo.. But, did I say that the Action is ok? I clearly stated that *to the extent* Obama went against the advice of his own legal team on one aspect of that Action and I said *that’s* “troubling”. You can take that as “not ok”. When the President’s own legal team opines that a contemplated action is in excess of his constitutionally granted powers, he should either respect that or at the very least tell us why he disagrees. It demonstrates a certain authoritarian arrogance (“this is likely not ok, but I can get away with it” or “the self-perceived (political) ends justify the bad means”) that is damaging to our institutions of government. That is a much more serious issue than the relatively pedestrian specific immigration issues that the Action addresses. For the rest, I think it is actually a good thing to formally articulate how the discretion the Executive Branch does have will be used.
“Then you imply that the true limits of presidential power can be measured by the memos generated by the White House councils office.”
I don’t imply anything of the sort (particularly since only in your imagination is there such a thing as a “council’s” office). I said that the best place *to start* on this issue would be that memo. Albeit at 33 pages, it’s a fairly concise summary of the issues involved. To complete the picture, Nick, you might want to consult the precedents and authorities mentioned in that memo and check that memo against those and logic. I also *clearly* state that the final arbiter on disputes such as this one on executive power is (and I’ll now state clearly, *should be* the courts) and it has been that way ever since Marbury v. Madison, if not before. The concept of constitutional separation of powers and checks and balances continues to be a brilliant framework, but alas most folks can’t get beyond their own immediate interests about specific issues and lose sight of the more important institutional ones. That should be writ large for those short of sight.
The failure here, if there is one, is the growing trend to think disputes such as this one should be resolved in the media and the blogosphere. What the heck do we need courts and grand juries for anymore? We’ve got the internet where everyone is entitled to his or her uninformed opinion! Latest example: large segments of the public don’t want to give any deference to a grand jury who, after listening to hundreds of hours of testimony, including experts, as well as physical evidence and being briefed on the relevant criminal law in the case, and after having fulfilled the obligations we as a society entrusted in them. It takes quite a bit of arrogance and more than a touch of ignorance to think that we can spend an hour or so on the internet and know more about the specific facts of this case to enable us to form a more informed judgement than this grand jury. It is unfair to them to suggest that we do and it is extremely unhelpful. If you disagree, fine. Change the law or the procedures in a civilized and lawful fashion.
Don’t like the injection of politics into our legal system? Neither do I. But, at least recognize where it is coming from. It is coming from every Tom, Dick and Nick that wants to influence not only the outcome of legal disputes (nota bene, not legislation), but also displace the institutions we’ve created to resolve them from the bleacher seats.
25. November 2014 at 06:06
Scott, good post, but I don’t think parliamentary government is anything like a silver bullet.
Lorenzo, great line from Merkel!
25. November 2014 at 06:49
Lorenzo, The more interesting question to me is what sort of government will these countries have when developed. I could have added that South Korea also has very small government.
dtoh, Which just shows how hard it is to pin these things down. Does the legality of an action depend on the President’s (unobservable) state of mind?
Handle, But that’s my point, there is no divided government in a parliamentary system.
Vivian, Sorry, but the points you raise are exactly the sort of points I’ve been reading in the blogosphere. So I don’t see how that helps at all. Unlike you, I don’t think the “legal experts” are able to provide any sort of clarity at all. If they have, I’d love to see someone summarize their arguments.
Student, The Chinese government today is very different from the Chinese government a few decades back. And a few decades in the future it will again be very different. There’s no point in extrapolating things that are very likely to change over time.
Ben, I agree.
Brian, I certainly agree that there are no silver bullets. But we can stop shooting ourselves in the foot.
25. November 2014 at 06:51
I want to “like” Vivian’s comments, but there is no button for that!
25. November 2014 at 07:13
Vivian,
I’m sorry I don’t understand your version of plain English. I assure you I’m not intentionally failing to follow, and I apologize for any typos past present and future … But your reply still hasn’t made much clear to me. The ferguson stuff in particular seems pretty off topic, although I’m sympathetic to you defending the grand jury from uninformed criticism.
Professor Sumner said it should be possible to figure out which actions are procedural ‘outrages’, but it isn’t. You seem (to me) to be saying that it isn’t easy but it is possible.
Ok so if I want to know if the immigration action is an ‘outrage’ I should read the memo, consult the precedents in the memo, and use logic. The part of the memo I think you are referring to, where they argue that extending deferred action to parents of DACA recipients is illegal, only contains two citations and 0 precedents. The pages of precedent are all in the parts of the memo defending the presidents action. The first citation is proof that congress put language in the INA about keeping legal families together, and the second is proof that DACA recipients are not legal from the language of DACA itself. I followed that logic, but that’s actually a dismantling of one tiny possible defense of the action, not actually a positive argument that it is an outrage against the constitution.
The truth is that it is not easy to determine what is an ‘outrage’ just like professor sumner said. I can’t determine it … And you seem reluctant to clearly state your answer. It’s ‘troubling’, but not an ‘outrage’?
25. November 2014 at 07:14
So, what did I say? Have oil, have GDP.
Q3 GDP posting at 3.9%! Party like it’s 1985! (And it will be until late next year, when we’ll be partying like it’s 1978.)
As I stated before, the data strongly suggests we are simply coming out of a long oil shock, which has been the source of ‘secular stagnation’. Not monetary policy, not ‘lack of aggregate demand’ (whatever that is), not demographics.
Also, AAA expects the most holiday travel since 2007. To wit:
“More than 89% of holiday travelers – 41.3 million – will travel by automobile, a 4.3% increase over last year. Thanksgiving air travel is also expected to be at the highest level since 2007, with 3.55 million people flying to their destinations, AAA says. That’s 3% more than in 2013.”
4.3% more vehicle miles, 3% more air travel. What do you think that means for oil demand?
25. November 2014 at 07:15
For reference, the typical Westminster solution would be that the executive (Obama here, but also a responsible immigration minister in cabinet) would (probably) have the authority to make such large-scale regulation changes. (For example, by policy Canada does not deport out-of-status people who have a pending application for permanent residency in the appropriate family class, but this policy is not found in statute.)
This is for two reasons:
*) First, enabling legislation typically grants ministers wide latitude to craft appropriate regulation. This explicitly carves out just what discretionary authority the executive has.
*) Second, executives in a parliamentary system must maintain the confidence of the legislative body. Except in particularly uncommon cases (Belgium recently, for example), the Cabinet must be able to command a functioning legislative majority.
If the US were a Parliamentary system, the election of a House Republican majority in 2010 would have triggered the resignation of the President (in a Westminster-type system) and/or the Cabinet (in a French, semi-Presidential system), with the subsequent installation of Republican-affiliated individuals.
A truly intractable situation, such as the US government shutdown from failure to pass supply (appropriations), would have triggered new elections.
25. November 2014 at 07:18
Scott I am not as optimistic is you. I don’t think oligarchs surrender their means very easily. It took a massive civil war to disassemble that kind of structure in the American south in the middle of the 19th century. I don’t see the Chinese leaders acting differently. Sure their government is different now than it was. However, they still seem willing and very able to make themselves billionaires on the sweat off their subjects brows. I don’t see that changing without some type of critical juncture occurring (to borrow the lexicon of acemoglue and robinson). Maybe I am wrong, but I just see the incentive for doing that on the part of the leaders of china.
25. November 2014 at 07:38
“Handle, But that’s my point, there is no divided government in a parliamentary system.”
I think we’re talking past each other. Most parliamentary systems still assign the interpretation of law to judges.
It’s entirely possible in such a system that a former minority party takes control that can’t muster enough votes to repeal a former law they mostly dislike, but which would be happy to let stand a court’s interpretation that severely hinders the law.
And a parliament full of today’s Republicans would probably prefer to let Obamacare die through SCOTUS action than do it themselves.
25. November 2014 at 07:48
“If we had a parliamentary system like Britain, it would be immediately apparent whether an abuse of power had occurred.”
As a Brit, I have to disagree. Theresa May and the Conservative Party (of which I’m actually a member) are trying to push through a new anti-terrorism bill which, among a few other things, will allow the government to stop people leaving the country, will make it illegal for universities to have certain speakers on their campuses, legally oblige schools and prisons to stop people from being radicalised and force ISPs and mobile phone companies to hold more of our data so the government can tell who was on a device and at what time.
25. November 2014 at 09:05
“Ok so if I want to know if the immigration action is an ‘outrage’ I should read the memo, consult the precedents in the memo, and use logic.”
Yes, Nick, if you really want an informed opinion, do your homework and after that you can choose whichever adjective you please to express your agreement or disagreement. I think this also goes for most other disciplines.
The “lack of clarity” in this case is not a defect of our legal system. It is a defect of our politics. No legal system is going to prevent, in advance, an executive who is intent on testing the limits of the law and his own authority. When you are constantly operating at the margins, or even calculatedly exceeding known margins, these issues inevitably arise and it is ultimately up to the courts to adjudicate. Obama was knowingly testing the limits (and likely exceeding that limit). He calculated he could ignore his own advisors and get away with it. He’s probably right, but such an attitude is damaging our institutions. Ultimately, voters should punish that type of action, as they should punish Congressmen who fail to act legally and constructively.
If we were to change our system of government to a Parliamentary system, the executive would de facto have more ability to pass *legislation*. It would not address the issue of the executive exceeding his authority unilaterally or refusing to carry out legislation that is on the books. Executives under such systems can also test the limits. The fact that many do so less often (in the UK perhaps) isn’t necessarily a reflection of the form of government as it is the culture surrounding it. The Weimar Republic operated (initially) under a Parliamentary system.
I guess one way to prevent this “unclarity” would be to give an executive unlimited power or for him or her to take it. That would solve a lot of issues regarding the perceived lack of “clarity”. I think experience suggests that the advantages of that sort of solution are far outweighed by the disadvantages.
25. November 2014 at 11:42
Vivian,
But I did read it, and I can’t choose my adjective. First of all, that part of the memo is just not very well done. As I said before it only has two cites and they just establish and knock down a straw man.
That memo in particular is a terrible argument for giving extra weight to the opinions of qualified legal experts. The first 20 pages makes point after point about how with objectively limited resources and wide discretionary authority the DHS is pretty much free to do whatever they want. Then they drop all of the arguments they used to justify 90% of the order when discussing why the last 10% isn’t allowed. They simply set up and knock down one straw man … and I really have no idea why.
And, look, I know there are problems with any way you want to organize these institutions. But there are some really bad incentives / interactions in what we have going now–as you seem to realize:
“Obama was knowingly testing the limits (and likely exceeding that limit). He calculated he could ignore his own advisors and get away with it. He’s probably right, but such an attitude is damaging our institutions. Ultimately, voters should punish that type of action, as they should punish Congressmen who fail to act legally and constructively”
So why won’t voters punish them for this? Well, obviously, Barry isn’t allowed to stand for another election. But a big factor is that we have too many different elections that all happen on a pre set schedule and voters can’t keep them straight.
We don’t have to have to just throw out checks and balances but we could incorporate SOME ideas that are common in parliamentary systems. Maybe politicians should sometimes face an extra election if they can’t reach compromise … and sometimes they should be able to avoid standing for election by reaching compromise.
You say: ‘No legal system is going to prevent, in advance, an executive who is intent on testing the limits of the law and his own authority’
Indeed! That’s why we shouldn’t rely on the legal system to do that. Fear of elections CAN restrain politicians in advance, and desire to avoid them can motivate legislation.
That Weimar thing is just too much … C’mon, you are better than that.
25. November 2014 at 11:47
‘Troubling’ and ‘outrageous’ are subjective terms — i.e., how does this action make us ‘feel.’
The action is either legal or not. And a whole bunch of evidence suggests that it’s not legal. The executive executes the laws but in this case he is making legislation.
25. November 2014 at 11:56
Is the White House’s actions “outrageous”?
In substance, no. The president can say that he has limited resources to enforce the law, and he will enforce the law do the degree that he has resources to do so.
However, the President clearly wants to create a showdown. He thinks he has a political winner, and he can nudge the Republicans to jump off that cliff. So, the President wants this to appear controversial, or there is nothing for the Republicans to chase over the cliff.
25. November 2014 at 13:42
Steven, RGDP growth this year will be less than in 2013. I don’t see nay boom out there.
Student, That’s a common mistake people make. You could have said the same thing in 1976, and have been totally wrong. Every single democratic country in the world (including Taiwan, South Korea, etc) went through a long history of never having been democratic. The worst possible way to predict the future is to assume the present status quo won’t change, because there are reasons for the present status quo.
The US antebellum South is one of the worst possible analogies for modern China–not even close. Unless you allow for lots of slaves to become billionaires. Many of the billionaires in China were once peasants, the closest analogy in China for slaves in the old South.
Handle, I don’t agree. Under a parliamentary system the Prime Minister (i.e. Obama) must have a majority in parliament (at least via a coalition government.) This could never happen in Britain. The government is essentially an elected dictatorship.
Ashton, Of course that sort of abuse could occur anywhere. I was talking about an action that they had no legal authority to take. Britain does not have a bill or rights, so they can do as they please. But I certainly agree that some actions would be both clearly legal and unwise, and hence an abuse of power in the sense of being unwise.
Doug, The GOP claim to favor more legal immigration. I suspect they don’t, and I suspect Obama knows that, and I suspect we are about to discover that fact. They control both houses–will they send Obama a bill for greatly expanded legal immigration?
Everyone, As soon as you grant any prosecutorial discretion (and almost everyone grants some) you create a grey area the size of Jupiter. That’s not to say that this case is not clearly legal or clearly illegal. It may be—as Vivian says I’m not an expert. My only point is that no one in the media (or this comment section) has given me (as a voter) any reason to not think there is a lack of clarity. If there is a clear argument in favor or against the action taken by Obama, I’m not seeing it. Feel free to write a long comment if necessary, spelling out why it’s clearly legal or clearly illegal.
25. November 2014 at 14:05
Maybe you’re right but I don’t think what’s happening in Hong Kong supports that position. I am assuming the status quo won’t change, history has shown that it can. What I am suggesting is that things don’t change without a critical juncture. Democracy has always been resisted and it took things like the black plague, the discovery of the new world, the American Revolution, the Korean War, World War II, the Civil War to change them. Unless some critical juncture happens in China, I don’t see if happening. Who knows though, my crystal ball is cloudy today.
25. November 2014 at 14:07
I meant,
I am not assuming the status quo won’t change, history has shown that it can.
25. November 2014 at 14:13
It’s easy to get frustrated with the divided structure of American government, but perhaps it’s a feature not a bug. You could see it as giving voters a third option. A two-party parliamentary system is like a steering wheel that can either turn left or right. In the American system, voters have a third option: keep going straight. Gridlock essentially ties government’s hands and preserves the status quo. This can be bad if there’s a looming crisis, such as an approaching brick wall in the steering wheel analogy, but it might be good if voters don’t have enough confidence in either party to fully support their agenda, and just cruising on auto-pilot is a reasonable choice.
25. November 2014 at 18:28
Scott,
“The government is essentially an elected dictatorship.”
Frank Buckley’s The Once and Future King
http://www.amazon.com/Once-Future-King-Government-America/dp/1594037191/
is very much worth a read.
25. November 2014 at 20:52
If we had a parliamentary system like Britain, it would be immediately apparent whether an abuse of power had occurred.
I don’t understand this. I imagine you mean it wouldn’t happen because the prime minister is the executive exercising the will of the majority of the legislature, so there will never be such a conflict between the two. (But something that doesn’t occur isn’t apparent when it occurs, so perhaps I misunderstand you.)
Secondly, you seem to suggest this is a bug in the US system compared to parliamentary systems, when the Founders as per the Federalist Papers explained it is an explicitly designed feature. The intent is exactly to prevent all that power from being concentrated in the legislature as it is in a parliamentary system, instead keeping it split up and thus fought over.
Amid the fighting, each side accuses the other of being obstructionist and power-abusing as never before ever in all of history, with the resulting inefficiency of govt destined to sink the US compared to the other nations of the world.
Yet the USA has the longest-lasting constitutional regime in the world (some might say Britain does, but its unwritten constitution has changed a whole lot more than ours since the days of King George), with the greatest 225 years of economic-political progress and success in the history of the world. (What other nation has sent people to the Moon to play golf?)
That is, it is a cognitive illusion to look at all the endless acrimony over congressional obstructionism and Emperor Presidents (Obama today, but 40 years ago the Imperial Presidency was a big issue in the first election I voted in, and FDR certainly was well-damned as an Emperor, and Wilson, Lincoln … back to Adams and even George W himself in his second term) from the short-term view of the frustrated partisan sides, and conclude this degrades the effectiveness of government. With a long-term, historical perspective it all can be taken as just the sizzle produced by the stabilizing structure of the most successful constitutional regime of the last 200 years.
Under a parliamentary system the Prime Minister (i.e. Obama) must have a majority in parliament (at least via a coalition government.) This could never happen in Britain. The government is essentially an elected dictatorship.
Exactly. And in countless cases one can omit the “essentially” as elected parliamentary governments with their essentially dictatorial powers became literal dictatorships. Need one make a list?
It hasn’t come anywhere close to happening in the USA in 225 years, for all our would-be Emperors. Even FDR couldn’t even pack a court, for all the brouhaha about obstructionism and Imperialism *then*. That’s the point of splitting power.
Everyone, As soon as you grant any prosecutorial discretion (and almost everyone grants some) you create a grey area the size of Jupiter…
Maybe so, but grey areas are absolutely essential for effective organizations. In business it is called decentralization, in management it is delegation. That is, a policy is set to follow and those who implement it are allowed freedom and choice of action in doing so. However, those given the job to implement the policy must be accountable for heeding it and the choices they make in doing so … say, “grey area disputes”. These are inherent and unavoidable conflicts, but effective organizations find efficient means for handling them. Ineffective ones turn to micro-managing, and the system degrades (often leading to more micromanaging…)
In government and politics there are extra complications and problems in this process, some unique to the US constitutional system.
Francis Fukuyama expands on this and on how Obama’s actions are likely to compound them here…
http://www.the-american-interest.com/2014/11/20/a-bad-call/
26. November 2014 at 02:56
“Everyone, As soon as you grant any prosecutorial discretion (and almost everyone grants some) you create a grey area the size of Jupiter.”
True, but isn’t there a difference between focusing more resources on enforcing certain laws than others different than not enforcing a law at all? And handing out cards to people saying they are immune from prosecution? (i.e., The work cards Obama is handing out)
Imagine a future Republican President wants to repeal the minimum wage, but the Congress refuses to pass the bill. Then he issues an executive order saying he will refuse to prosecute anyone who violates the minimum wage law. Then he says if Congress doesn’t like it, then they should just “pass a bill”. Wouldn’t that be outrageous? How is different from what Obama is doing?
26. November 2014 at 04:39
Jim Glass,
Some of the gridlock we see is the system functioning as intended. Some is not. Over time political parties in this nation have become very coherent and organized in a way the vast majority of the framers explicitly hoped to avoid. And the post FDR executive is a beast, transforming advise and consent into a totally different animal and introducing hidden veto points into the system controlled by the political parties.
If you read my exchange above with Vivian you will see that some people hold the opinion that the president shouldn’t even be allowed to scratch his ass without publicly answering all of his own employees questions about it. This is actually a good thing! But it’s not ‘the madisonian system’ … I’m sure seeing the OEOB alone would make many of the framers faint.
26. November 2014 at 07:18
If we had a parliamentary system like Britain, it would be immediately apparent whether an abuse of power had occurred…They would respond to any court ruling by simply fixing the language of the law.
And they could make Obama dictator for life and cancel all future elections. Even now, parliamentary-America Krugman would be explaining why this was the only decent, rational course for the country.
It’s important to realize Britain is also a constitutional monarchy — the power of the democratic Parliament was traditionally balanced against the power of the feudal system.
I support more freedom to immigrate, but the voter preferences of those who migrate could destroy the very virtues that drew them here.
26. November 2014 at 09:44
Student, Your history is wrong; democracy often occurs without any critical juncture–there are many recent cases all over the world–East Asia, Europe, Latin America, Africa, etc.
O Nate, Maybe, but I doubt that voters like gridlock.
Jim, I think parliamentary systems do better, on average, as compared to strong presidencies. The US has done well, but might well have done better with more effective governance. And even if it has worked well in the past, I don’t see it working well going forward.
Negation, Those are all good arguments, but there are also lots of good arguments in the other direction.
TallDave, That would probably require a constitutional amendment. But yes, any democracy could in theory vote to abolish democracy. Something similar almost happened in 1937, even under our system.
26. November 2014 at 10:09
Scott — but it would be more difficult under our system, and the difference between a republic and a democratic tyranny is basically that difficulty.
My ideal libertopian paradise makes it a little bit difficult to vote (maybe 15 years to citizenship, poll tests of basic civic virtues like “bribery is wrong”) and requires 75% approval to change most laws.
What the world really needs is political systems that can absorb more people from failing systems, dramatically raise their living standards, and effectively assimilate them into better institutions, without eroding those institutions.
28. November 2014 at 05:34
Talldave, The citizenship test is an interesting idea, but I’m skeptical of supermajorities to change laws. That assumes the average change would be for the worse. Maybe, but in that case democracy would not be a good system.
28. November 2014 at 17:15
I believe the actual text of the relevant law – sorry, I can’t find the link – the US *shall* deport, on the order of the AG…
eg, IF the AG orders it, then the US SHALL deport
but, congress didn’t fully fix what the AG may or may not do
3. December 2014 at 12:12
Scott — Well, of course it’s been known for millennia that democracy has serious flaws, that’s why the Founders added all those “Congress shall make no laws” to the Constitution, and then required supermajorities to change it. (And since they largely comprised Congress, they were essentially admitting that they themselves could not be trusted with unconstrained power.)
The best system seems to be constrained democracy. But a system that seeks to absorb massive numbers of immigrants needs somewhat more constraints.
Also, you might be surprised how much legislation is passed by supermajority anyway.