If you guessed that Republicans and Democratic President Barack Obama have generally concluded that working with each other through the normal legislative process to address the country’s problems is too hard, you wouldn’t be too far off from the truth. So, much like what many students are tempted to do at this point in the semester, they have resigned themselves to mediocrity and half-measures to get by and get what they want.
This kind of resignation has been happening for years in multiple sectors of the political arena — witness how Republicans slammed Medicare reform through Congress at 5 a.m. in 2005 while ignoring the amount of time allocated to the vote. And how presidents have been habitually able to ignore the War Powers Act of 1973, particularly its restrictions on the use of military force, in the face of a Congress that has only chosen to invoke it once. It happened again last Thursday, as Obama announced a policy shift on immigration through an executive order. Along with a few nods to border security in a lackluster attempt to appeal to Republicans, it granted five million undocumented immigrants a pathway to temporary U.S. residence if they can fulfill a raft of eligibility requirements.
Don’t get me wrong — this is, unquestionably, a better policy than the current one. Among other things, it creates an essential and long-promised avenue through which people, who have worked extremely hard and embody American ideals, can cease to fear deportation while not incentivizing new arrivals outside of the legal system in place. However, as gratifying as the result may feel, the means used to get there matter. That executive action — stemming purely from the executive branch — was the only feasible way to change immigration policy for the better, and it is deeply troubling from an institutional perspective.
For those who care deeply about a legislatively frozen issue, executive actions’ power as a tool for change is extraordinarily seductive. Part of the reason for this is simple. Self-interest makes it hard to care about the process behind policies that will enhance your, your friends’, or your social group’s quality of life if only a deadlocked Congress weren’t in the way. The singular, often deeply personal factors driving this interest are resistant to all but the most flagrantly irresponsible policy solutions to the problem — irrespective of whether a court order, bill or bureaucratic rule change caused it.
Thankfully, Obama’s action on immigration is well outside of that range. Moreover, its status as a victory for those directly affected by the immigration issue leads them and their ideological supporters to classify the means as a lower-level, almost trivial concern. Those left in opposition end up outraged over the content of the action itself — and in a situation as exceptional as this, should be expected to seize upon that exceptionality’s source and take issue with it.
This cuts to the basic problem behind using executive action to implement a policy change as significant as this one: a presidential directive can’t claim any of the legitimacy that debate and discussion in Congress confer upon if the legislation it passes. (If what follows doesn’t clarify this for you, the recent “Saturday Night Live” skit involving Obama’s executive decision should suffice.) That body’s dismal and contradictory approval ratings aside, the process it owns has a great deal of historical and symbolic weight. Its members are pieces of the most comprehensive, current and concise human mosaic of collective American political and ideological opinion in existence. The president, in comparison, is only a single person and while his or her views might change over time in office to better reflect those of the public, the impressions and opinions the public forms change at a much slower pace. Whether Americans feel that the president represents their concerns is outside of the president’s control, and still independent from their right to representation in Congress.
In short, the contemporary blowback from opponents of immigration reform through executive action and the methodical disregard shown by its supporters should not come as a surprise to anyone with knowledge of Congress’s institutional role in legitimizing policy change. Executive action can certainly make change more quickly than Congress can; its test now will be to see if it can hold up without the formidable power of legislative legitimization at its back.
Eric Ferguson can be reached at firstname.lastname@example.org.