Stick with me here. There's a red hot debate underway about the legality of President Obama's alleged plan to extend effective legal status to millions of adults who are in the country illegally by, among other things, awarding them work visas. Obama issued a similar executive order in 2012, which only applied to so-called DREAMers -- ie, a relatively limited number of people who were brought into the US illegally as children. The follow-up action he's reported to be seriously considering would expand that "temporary" (stay tuned for why that word is in scare quotes) form of amnesty to a much larger pool of people who knowingly and proactively violated US immigration laws as adults. Lefties have been churning out pre-emptive excuses for the White House, most of which boil down to a frighteningly unprincipled argument: When Congress is this dysfunctional, presidents are empowered to take action that may extend beyond their traditional constitutional authority. Plus, they argue, the executive branch has fairly broad enforcement discretion anyway. The New York Times' Ross Douthat wrote a lengthy and excellent post yesterday thoughtfully replying to some of these arguments. If you care about this issue, you should read the whole thing. Among other points, it addresses the "temporary" designation above, and advances this central concern:
There’s a difference between executive discretion and an effective rewrite of the laws. [A liberal writer's] own examples of alleged precedents for what Obama wants to do are helpful in illustrating the point. He notes, for instance, that the IRS “doesn’t audit paupers very often,” even though tax law technically applies to rich and poor alike. But that doesn’t mean that President Marco Rubio would be justified in using his executive discretion to announce that, because a divided Congress won’t agree to pass his pro-family tax reform, he’s directing the IRS to issue permits to all families making less than $150,000 formally exempting them from income and payroll taxes....Again, it’s not that the executive doesn’t have latitude and discretion in legal enforcement. But when that discretion amounts to a de facto rewrite of the law, we’re in rather different territory.
Douthat lays out a number of what-if's for liberals, trying to suss out the extent to which they'd be willing to tolerate 'statute-rewriting-through-enforcement-discretion' before rejecting it as unconstitutional lawlessness. (Spoiler: Their tolerance is largely dictated by their philosophical agreement with the action being taken). For instance, he writes, "imagine George W. Bush directing the IRS to add private accounts to Social Security after Congressional Democrats rejected entitlement reform, or Bill Clinton directing the IRS to create tax credits for the uninsured after Hillarycare died on the Hill, or …" Exactly. How far does this go, and what's the limiting principle beyond gut feelings about propriety -- which are often colored by ideology? Douthat also responds to the point that Congress' inaction somehow invites robust exertions of (perhaps non-existent) presidential power. He says this concept amounts to a trampling of the separation of powers. Congress is no longer a co-equal branch if a president can instruct them legislate a certain way, or else he'll pull some imaginary power out of his hat to institute his preferred ends anyway. Douthat concedes that there may be some instances in which a president overstepping his bounds to compensate for gross Congressional negligence might be justified (a debt ceiling crisis is one example he uses), but asserts that immigration reform -- dealing with a problem that's lingered for decades -- doesn't even approach that category of emergency. One of the other precedents lefties have been citing on this controversy is Jimmy Carter's 1977 blanket pardon for Vietnam War draft dodgers. But that's different than prosecutorial discretion, conservatives reply, because the presidential power to pardon is explicitly enumerated in the Constitution. At last, we arrive at the question I want to raise: Why couldn't Obama simply invoke that power by pardoning those illegal immigrants he's seeking to legalize? He could effectively wipe away the legal potency of their initial offense; namely, entering sovereign US territory unlawfully. Here are a few objections and questions about this idea I've culled from Twitter (where I originally raised the issue):
(1) Aren't pardons limited to people who've been convicted, or at least charged? Not necessarily. Nixon was pardoned for illegal acts that *may* have occurred, and a huge, untold number of those aforementioned draft dodgers hadn't been charged with anything -- yet Carter's executive absolution applied to their cases. "A pardon can be issued from the time an offense is committed," notes...the Heritage Foundation's legal summary of this presidential power.
(2) Wouldn't Obama have to pardon each person by name? I don't think so. Again, see the draft dodger precedent. That was an across-the-board action that pertained to an entire class of lawbreakers.
(3) Pardons only apply to criminal offenses, and illegal immigration largely resides in the administrative and civil realm. That's true, but Obama would argue that of course presidential pardon powers would extend to "lesser" infractions. If a president is allowed to pardon a serial killer or a traitor or a terrorist just for the hell of it, why wouldn't he be able to clear someone whose violation was much, much less severe? Counterpoint, anyone?
(4) But illegal immigration is an ongoing offense, so pardoning the initial act wouldn't grant legal status, which is what Obama wants to do here. Again, technically true. But if the "original sin" is absolved, that would leave the pardoned parties in a hazy legal state. They wouldn't be officially "legalized" per se, but that would be their de facto -- and somewhat legally codified -- new status. Doesn't the "ongoing offense" problem vanish if the underlying initial act gets erased from the record?
(5) Surely there's some limit to this particular power. If not, couldn't presidents use blanket pardons to basically nullify any law they don't like, or effectively impose any law they desire? You'd think so, but let's refer back to that Heritage analysis (and Lord knows the Left loves quoting Heritage when it suits them. See: the individual mandate): "The power to pardon is one of the least limited powers granted to the President in the Constitution. The only limits mentioned in the Constitution are that pardons are limited to offenses against the United States (i.e., not civil or state cases), and that they cannot affect an impeachment process." Okay, so Obama and friends would just shrug and argue that illegal immigration is an 'offense against the United States.' How does one argue against that, at least from a political standpoint? The ensuing debate over "going too far" would be complex and frustratingly subjective.
Don't get me wrong: I am absolutely not advocating this course of action. And I'm not suggesting that it wouldn't be fraught with political risk (here's the sympathetic Washington Post editorial board warning Obama against taking unilateral action on this front). It just occurred to me that an immigration pardon-o-rama could be a particularly devious method of achieving most of what Obama wants on this issue, and doing so with a patina of legality. Picture the president ridiculing Republicans over their inevitable (and entirely reasonable) fury over such a power grab: "These guys claim to care about the Constitution. They're all about it. They even sued me for supposedly overstepping my authority. Well, here's my copy of the Constitution, and here's what it says about presidential pardons..." Whether this scheme would make for an strong legal argument that could hold water in court, I have no idea. But it would muddy the waters considerably, especially within the political realm. Also, don't forget that Obama straight-up asserted the right to declare Congress "in recess" in order to make executive appointments earlier in his term, in clear violation of the law. It took a protracted court battle to overturn that lawless behavior (9-0 by SCOTUS). The point is that Team Obama is very much open to an 'act now, resolve questions later' approach to achieving their political goals. Stray thoughts: In the long-ish run, would Republicans have the political will to fight to re-illegalize those millions of people -- even if it invited endless demagogic race-baiting from Democrats, while offending much the growing Hispanic electorate? I'm skeptical. If anything, the nebulous legal status conferred by this action would be seized upon as yet another pressing reason to enact comprehensive reform legislation. It's unfair to leave these millions of people in limbo, we'd be told, so it's imperative to fashion a path to citizenship for them.
And thus ends my thought experiment. Feel free to tell me how nutty I am in the comments section -- but before you do, answer this: Do you put the scenario described above past the Obama administration?