The Right Thing in the Wrong Way

One aspect of the genius of our Constitution is that it requires that, if our rulers -- the tripartite structure of the executive, legislative and judicial branches -- choose to do something, they must use a prescribed method to create a law.   The President may propose legislation, but the Congress must pass it, and then the President must sign it into law, and, if challenged, the Judiciary must declare the law to be Constitutional.  

In other words, they cannot just do what they think is right, they have to do it in the right way.

The problem with President Obama's executive order legalizing 5 million illegal immigrants is not that it necessarily is a bad thing to do per se.   I tend to agree with this sentiment from Walter Russell Mead:

I cannot help but sympathize with the President’s intentions. Through a combination of bad policy (such as the Reagan amnesty), poor enforcement of our border controls, and the existence of a large underground economy, millions of foreigners have been living, working, marrying, and having children among us for decades outside of the law. As a human problem, this demands a response. The development of a class of illegal alien workers who lack the full and equal protection of the law is an affront to the ideal of human equality and undermines the well-being of the legal workers who have to compete with underpaid illegals in the marketplace. The children of such people who are born in the United States have committed no crime and both common decency and our own laws demand that such people receive education, health care, and the basic services that government provides. President Obama did not create the tangled morass of the failed American system of managing and regulating immigration, and both as President of the United States and as a human being under the judgment of a just God he has unavoidable obligations to seek a humane solution to the problems we face. The solution he chose may be a poor one, and it exposes both the nation and future immigrants to more trouble, but the situation is real and no perfect solution to a problem this messy exists.

I think a lot of Republicans actually also agree with this.   Very few among us have a taste for massive deportation.   As I wrote two years ago:

Conservatives have talked, correctly, about cutting off illegal immigration by building a fence along the border, and by increasing enforcement along the border with Mexico. Conservatives have talked, correctly, that the winking acceptance of illegal immigration weakens the rule of law and respect for the law. All of this is true. But, with regard to 10-12 million illegal immigrants already here, what conservatives have not said is what they would do. Are we really going to deport 10-12 million people? How would we do that logistically? How would we do it without massive civil unrest and potential violence? How would we do it without -- and this is blunt -- a massive fascistic police state replete with concentration camps and cattle cars and barbed wire and machine guns, etc.? It's not going to happen, and conservatives who dream of deportation are chasing a fool's errand. More to the point, deporting millions of immigrants who came here because we did wink at the laws because we did want cheap labor would be immoral. Conservatives can't say we believe every life is precious, which it is, and then say that 10-12 million people who are living among us can be subjected to what could only be a massive cruelty.    

The upshot: conservatives need to get out front of a reasonable amnesty plan for illegal immigrants who can demonstrate that they've been here for X number of years, along with a reasonable timetable for them to gain full citizenship. They can't move in front of legal immigrants in the line, but they ought to be able to get there in a generation. 

Needless to say, this must be coupled with serious border enforcement, and serious entitlement reform, and serious economic reform so that new Americans can be legal and productive citizens.

That being said, the problem with Obama's executive order is that it does the right thing in the wrong way, one that is patently unconstitutional, as Obama himself had previously recognized many times.   The Constitution clearly gives Congress, and Congress alone, the power to adopt "uniform Rules of Naturalization."   The President cannot simply declare a  category of non-citizens to be citizens; nor can the President, who swears to uphold and enforce the laws as written by the Congress, simply declare that he won't enforce existing immigration laws; nor can the President declare whole categories of duly-defined crimes as being not criminal; nor can the President say that a whole category of crimes for which the penalty is deportation will not be prosecuted.   He can argue with Congress, he can seek to persuade the American people to elect a new Congress, but he can't, having failed to persuade either Congress or the American people, simply act alone.   If he does so, he is acting unlawfully -- he becomes a tyrant.  

Look, for many of us, perhaps most of us, the difference between an executive order doing X and a duly-enacted law doing X may seem trivial.   More's the pity.   If we had a better education system, one that taught civics, one that read history, one that understood Plato and Aristotle and Montesqui and the Founders, we might realize that the distance between what may seem to be a benign and even benevolent tyranny and a malevolent dictatorship is just a matter of perhaps having a different kind of man or a different moment.   And we would care more when a President crosses the line toward tyranny, whatever his excuse.