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What Happens When Parties and Elections Change, and Constitutions Don’t

[Cross-posted to In Medias Res]

Yesterday, Ezra Klein summed up the Obama presidency thusly: “Obama [has] pushed more change through the political system than any serious observer expected….[b]ut he’s done it by accepting–and, in many cases, accelerating–the breakdown of American politics. Judged against the rhetoric of his [2008] campaign, his presidency has been both an extraordinary success and a complete failure.” That’s not an unusual claim in these days of partisan absolutism, but it is a little surprising to see a wonky liberal like Klein to make it. Even more surprising–or perhaps it isn’t–is to realize that Klein is making pretty much the same point that Ross Douthat has been making over the past several days in the wake of the news of President Obama’s consideration of exceptionally wide-ranging executive actions to address the humanitarian crisis that our dysfunctional immigration policies have helped to create. Says Douthat: “what the White House wants to do on immigration…would be lawless, reckless, a leap into the antidemocratic dark.” It would, in other words, be a case of Obama responding to a genuine problem by, Caesar-like, breaking through the laws by which presidents are supposed to act. I see the point of Douthat’s fear, and agree with it–but I don’t think Douthat is being honest about the causes that have brought our country to this point.

(Before I get into this, a quick aside: plenty of folks on the left side of the political aisle are quick to dismiss Douthat as a partisan hack and a close-minded prude. I can’t do that. Admittedly, what I see as his tendency to either condescend towards or simply be oblivious of those issues and people that don’t fit into his somewhat privileged moral boxes often drives me nuts. But for all that, he’s a smart, wonky conservative, and not an anti-Obama crazy; when, in reference to those who “think that this president has been violating basic norms of constitutional government since the earliest months of his administration,” he writes that “I am not and have never been one of them,” he’s describing his own commentary accurately. His observations are often–as in this case–genuinely challenging, and deserve a careful response.)

The heart of Douthat’s charge is that not simply that Obama, in suggesting several possible executive actions (mostly revolving around a reprieve from legal limitations and deportation for upwards 5 million law-abiding undocumented immigrants who are closely related to American citizens or have been long-time U.S. residents, essentially a major expansion of the Deferred Action protocol which Obama put into action through executive order two years ago), is going beyond normal executive “latitude and discretion in legal enforcement” and moving into “a de facto rewrite of the law.” No, what he thinks is worse is that the president, in his view, is embracing this “power grab” in such a way as to violate basic norms of constitutionality. Douthat does not deny that we are years into an era of unprecedented party polarization and congressional dysfunction; the incentives as they presently exist (gerrymandered Republican House members that find themselves in an endless race to prove themselves to be more anti-Obama and ideologically pure than any possible primary challenger) have created a fatalistic, “‘let the policy happen, just don’t make me vote for it’ dynamic,” which of course creates a space for even more unilateral action from the White House. But he is convinced that there is, somewhere in the greyness, a Rubicon-type line which is being crossed, separating dubious constitutionality from outright caesarism:

But the absence, as Al Gore might put it, of a clear controlling legal authority only strengthens the importance of norms, precedents and judgment in these matters. And my judgment is as follows: Given….[that] it’s pretty reasonable to describe DACA itself [as a] moderately-but-not-grossly lawless, moderately-but-not-extraordinarily abusive of the president’s powers… then to describe a mega-DACA as something more extraordinary, reckless and (yes) caesarist, and therefore more worthy of outcry and opposition. I can’t prove, citing statute and verse, that this judgment is correct, and I can’t tell you exactly the moment (1.17 million work permits? 2.88 million?) when moderate abuse shades into something more extraordinary. But I think my basic judgment on these matters is a lot more credible and responsive to the facts than the “nothing to see here, just discretion as usual” argument offered [by the president’s defenders].

I can’t say I dispute this–but then, I think President Obama (like every president since Nixon) has acted unconstitutionally through their refusal to formally acknowledge the War Powers Resolution, so perhaps my opinion isn’t surprising. Douthat thinks the fact that this is a domestic issue makes it even more frightening an omen for our country, as traditionally “domestic power grabs are usually modest in scope.” Which, when you think about it, is an odd thing to claim in defense of one’s position: are we supposed to believe that under our system of government power grabs are routine enough to be incorporated into institutional norms, and so the real crisis is that this president, at this time, is making this sort of power grab, as opposed to some other? That seems to be the upshot of Douthat’s complaint.

Consider, for example, how important he thinks it is that President Obama and the Democratic party had taken legislative actions which were apparently responsible for making his political opponents become unwilling (due, no doubt, to the aforementioned partisan dysfunctions) to compromise on the issue of immigration:

[I]n the spring of 2012, Marco Rubio started working on a variation on the DREAM Act–one that wouldn’t go as far as the bill the White House favored, but seemed to have some chance of passage, not least because the context of a presidential election (and Mitt Romney’s struggles with Hispanic voters) gave Republicans a reason to seek compromise. At which point the White House, in a move that (to quote Ed Kilgore, no conservative) ”was universally understood as a preemption” of Rubio’s potential bill, released its own executive order–the precedent for the one being currently considered [that is, DACA]–legalizing the population in question, which (as the White House no doubt expected) made it politically impossible for Rubio to push forward with legislation that would have effectively just ratified that move.

From the point of view of Douthat’s columns, this is evidence of the president’s incipient caesarism, a willingness to score political points in an election environment by unilateral actions which would appear to only strengthen his own executive discretion in the future, by undermining the possibility of some actual, you know, law making. But of course, that’s only looking at the Republican and congressional sides of the equation, isn’t it? After all, is the White House, or the Democratic party, to be blamed for the Republican party having built, through so many years of effort, an electoral structure which is so closed to compromise and views the sitting the president as so toxic that any act of genuine legislative deal-making which isn’t done from a position of either total conservative victory and complete conservative absence is accepted by Rubio & Co. as electoral suicide? Of course they can’t be. One might, of course, claim that we need to expect the president to have higher standards than the average, vote-grubbing member of Congress; that the norms which have evolved to govern the significant powers of the presidency reflect such an expectation. But it seems to me the obvious response to that is very simple: why on earth would the party in power, the one in the White House, be any different kind of political animal than any other party? Just because President Obama doesn’t have to win an election in a congressional district in Chicago doesn’t mean that he somehow isn’t a creature of the exact same dysfunctions which are currently poisoning Congress–on the contrary, the all-or-nothing partisan mentality which the White House apparently counted on to make Rubio and other congressional Republicans too angry/scared/weak to move forward actual immigration reform permeates our electoral system as a whole, from top to bottom. Non-power-grabbing norms don’t emerge out of thin air: they depend upon institutional forms, and those institutional forms have to serve the needs and beliefs and practices of those who built them–and when they no longer do, the forms are abandoned, or at least disrespected, and the norms will, of course, follow. So if, on some level, Obama and his team saw in 2012 an opportunity to see Rubio trapped between his own political self-interest and the ideological and electoral infrastructure which he’d helped to build, is that really a power grab? Or is it, instead, the only game in town?

I’m not defending that game at all; on the contrary, it depresses me, so much that sometimes I genuinely despair. Unlike Eric Posner and other defenders of the president’s contemplated measures whom Douthat attacks, I want to believe that the United States doesn’t have to and shouldn’t descend into what Sheldon Wolin described nearly 20 years ago as “plebiscitary democracy.” Rather, I believe in legislative supremacy and deliberative democracy (on the level of principle, at least), and I prefer to read our constitutional order in such a republican or populist light as to maximize its potential in that direction. But I can also read history, and see what what it tells us about the roots of our present paralysis. The institutional forms set up by our Constitution came to life and gave rise to governing norms through and the midst of party coalitions and a political culture much more regional, much more elitist, much less disconnected, and much less ideological than America became through the 20th century. All through the transformative rise of the American conservative movement (and sometimes as a result of it!), we became a more alienated, more globalized, more liberated, more diverse, and generally more “winner-take-all” country than we used to be, for reasons both economic and social and cultural. The Republican party of Marc Rubio, the Democratic party of Barack Obama, the electoral strategies which put them in power, the campaign financing which enabled them to make use of those strategies, the ideological and socio-economic framework upon which that money did its work–all of it over the past half-century has changed to the point of near unrecognizability. If it really does turn out that Obama feels he has no other option that to turn to–or indeed, that he is even now busily calculating the political advantages of employing–a little presidential caesarism in response to a serious domestic problem, Douthat needs to fault more than just the man in the White House: he needs to also fault the constitutionalism fetishism which refuses to seriously contemplate that our present system of government depends upon democratic and legislative norms that no longer have much good reason to exist.

About Russell Arben Fox

Russell is a resident of Wichita, KS, an associate professor of political science at Friends University, a liberal communitarian and a Christian socialist, and a person who has long had, and who continue to have, a loving, occasionally oppositional, and all-around complicated relationship with one of the founders of this fine website.