Both Ramesh Ponnuru and Danny Vinik are concerned about President Obama’s apparently forthcoming executive action on immigration. After waiting in vain for Congress to take up immigration reform, Obama is poised to grant up to five million undocumented immigrants relief from deportation and to allow them to apply for work permits. This makes Vinik uneasy: “Five million is a really big number,” he writes. “And whether giving a reprieve to such a large population crosses a line of democratic norms is still a murky question—murkier than many liberals seem to recognize.” Ponnuru is less torn: it’s “outrageous as a constitutional matter,” he writes, “to grant legal status to several million illegal immigrants unilaterally.” I don’t think this is quite right—the order would not change the legal status of these immigrants—but in any case, that’s not Ponnuru’s broader point. He goes on: “It shouldn’t need to be explained that the refusal of Congress to pass legislation to the president’s liking isn’t a breakdown of the system that justifies an extraordinary presidential act.”
As it happens, I agree. Mere refusal by a skeptical Congress to sign off on a presidential priority doesn’t amount to systemic breakdown. But that’s also an extraordinarily generous description of how the current Congress has approached immigration reform—or any other major item on the president’s agenda, for that matter. The House has been stringing the president along on immigration reform for years (here, Simon Maloy quotes John Boehner declaring “It’s time for the House to act” over a year ago). It is obvious to everyone in Washington that Boehner has no intention to do anything about immigration reform, and that he never has. The White House, for one, is no longer fooled by his act. (The media, on the other hand, is still an open question.)
This is gridlock, certainly. But is it total dysfunction? Unfortunately, we lack an agreed-upon definition that distinguishes the two, and which would tell us when systemic breakdown is happening. It might be a matter of procedure: Boehner already said over the summer that he would not allow the House to hold an immigration vote this year. (Note that his decision was before the midterms could have given him even the slightest electoral cover.) Or we could try to define systemic breakdown in more substantive terms, by arguing that the situation of these millions of immigrants is a real crisis which demands congressional action. On this logic, if Congress fails to act, it falls to whoever has the power to address the situation.
Neither of these approaches is totally foreign to political discourse. The substantive argument is a common justification of emergency national security powers. The procedural argument is part of the convincing case that liberals and non-partisan analysts have made against the unique dysfunction caused by the current GOP faction in Congress. But neither approach is totally convincing, either.
In light of this uncertainty, it’s easy to be skeptical. Unilateral executive action, even when the President is right on the merits, could further escalate the White House-Congress showdown of the last several years. But if Obama’s unilateral step sets a risky precedent, so too does declining to act. Already, a disturbing legacy of the Obama era is emerging: the normalization of dysfunction. Republicans have systematically sabotaged governance during this Administration, and that strategy—helped along by the elite media’s refusal to blame the responsible party—risks becoming a normal part of American politics, something so unremarkable that complaining about it would be as quaint as lamenting attack ads. That would be disastrous. Congress’s inaction on immigration and other issues is indicative of the right’s belief that as long as Obama is President, the political system should be brought to a halt. The president’s response—not just for the sake of his own agenda, but for the sake of democratic legitimacy and the health of that system—cannot simply be to surrender.