President Obama is furious about congressional gridlock. In a press conference last week, he chastised the Republican-led House of Representatives for refusing to support the bipartisan immigration bill that was passed out of the Senate last June. “The argument isn’t between me and the House Republicans,” the president said. “It’s between the House Republicans and the Senate Republicans, and House Republicans and the business community, and House Republicans and the evangelical community.” The president then insisted that intransigence on the part of House Republicans was forcing his hand: “In circumstances where even basic, common-sense, plain, vanilla legislation can’t pass because House Republicans consider it somehow a compromise of their principles, or giving Obama a victory, then we’ve got to take action.”
This is part of a recurring pattern: With Republicans in control of the House, President Obama has found it all but impossible to move his domestic agenda forward through legislative means. And so, according to his conservative critics, he has stretched his powers to the limit via a series of executive actions. Josh Blackman of the South Texas College of Law has accused the president of using congressional intransigence as an excuse to “suspend, waive, and even rewrite statutes.” In 2012, for example, the president announced a sweeping deferred action for millions of unauthorized immigrants who came to the United States as children. These women and men would be shielded from the threat of deportation, and they’d be allowed to apply for employment authorization. More recently, the Obama administration has reportedly considered extending this treatment to millions of other unauthorized immigrants whose relatives are U.S. citizens. Ross Douthat of the New York Times warned that by flouting Congress on immigration enforcement, the president is inching ever closer to “domestic Caesarism.”
To be sure, the president has his defenders. One of them, Slate contributor Eric Posner of the University of Chicago Law School, maintains that it is Congress, not the president, that is undermining constitutional norms. “If Congress cannot pass any laws because of gridlock,” Posner writes in the New Republic, “then it has violated its obligations under the Constitution, and accordingly the president has the right to use his enforcement powers to implement policies that serve the public interest.” It is Posner’s view that appears to come closest to the president’s: If House Republicans are standing in his way, he’s left with little choice but to take action.
Let’s leave aside the question of whether or not the president has the right to use his prosecutorial discretion to, in effect, accomplish by executive fiat what he can’t via legislative means. Is it really true that Congress violates its obligations under the Constitution when it fails to pass any laws? I would argue to the contrary that House Republicans are taking their constitutional duties seriously, and that the congressional inaction the president condemns is in fact an indication that our democratic system is working.
Consider the bipartisan immigration reform bill that passed the Senate yet has met with fierce resistance in the House. If you listen to the president, you’d think the only reason House Republicans would oppose the bill is that they are Obama-hating troglodytes. But there is another more plausible reason for them to oppose it.
The Congressional Budget Office’s analysis of the bill found that it would increase the U.S. population by 16.2 million between 2014 and 2033, over and above the roughly 20 million in net international migration already expected under the status quo. No one denies that the bill would increase legal immigration substantially, least of all its chief sponsors. This is despite the fact that while Gallup has found that 41 percent of Americans want immigration levels decreased, a mere 22 percent want to see immigration levels increased. Though the share of Americans who want immigration levels decreased has fluctuated over the last several decades, reaching a peak of 65 percent in the mid-1990s, the Gallup data show that the share of Americans who want immigration levels to increase peaked earlier this year at just 27 percent.
The House of Representatives was designed to be the part of Congress that is most responsive to popular opinion. It’s not at all obvious that members of the House are failing in their constitutional obligations when they are resisting a legislative proposal—even one backed by every significant business lobby under the sun, Michael Bloomberg, Mark Zuckerberg, and other enlightened billionaires—that increases immigration levels when doing so is extremely unpopular.
The thing about congressional gridlock, as Josh Chafetz of Cornell Law School has observed, is that it is not actually a thing. Rather, gridlock is the absence of a thing, that thing being legislative action. Instead of fixating on why we have gridlock, Chafetz asks that we instead think about why we ever have legislative action at all. Bicameralism is in itself a big barrier to legislative action. Getting majority support in one chamber of Congress is hard enough; getting it in two is harder still. Moreover, the major players in federal legislation—the House, the Senate, and the president—have different, albeit overlapping, constituencies, and they operate on different electoral cycles. For a party to achieve unified control of Congress and the White House, it usually takes more than just a single swell of popular support. It often takes two or three. Chafetz argues that we can only expect legislative action, then, when there is a sufficiently broad public consensus to take a specific course of action. When this consensus is lacking, we shouldn’t be at all surprised when the legislative machinery grinds to a halt.
The reason the first two years of the Obama presidency were so transformative is that the double whammies of the Iraq War and the financial crisis led to two massive Democratic victories, in 2006 and 2008. President Obama and his allies translated those electoral wins into the most ambitious legislative agenda in modern memory. From the stimulus to Obamacare to Dodd-Frank, the first years of the Obama administration saw a frenzy of activity, despite the objections and concerns of Democrats representing moderate districts, many of whom were swept away by Republicans in the congressional elections of 2010 and 2012.
One way of thinking about why President Obama has met with such intense resistance from congressional Republicans is that the president and his allies overinterpreted their mandate. By the time 2008 rolled around, there was a broad public consensus in favor of getting U.S. forces out of Iraq as quickly as possible, and on that issue, at least, conservatives found themselves on the defensive. Many once-vocal hawks suddenly fell silent. Yet there wasn’t an equally broad public consensus in favoring of creating a new health entitlement program—a legislative effort that (barely) succeeded—or introducing a new cap-and-trade system—an effort that failed. Conservatives felt that they could oppose these efforts without risking defeat, and they were right.
On immigration, similarly, President Obama is ignoring the basic fact that, while Zuckerberg and friends spend vast sums making the case for the Senate bill, an overwhelming majority of Americans either want to keep immigration levels exactly where they are or decrease them.
The House Republicans for whom the president has so much contempt aren’t always the most appealing bunch, and there is no question that they get many things badly wrong, as the more loose-lipped among them will happily tell you. There is a reason Congress’ approval rating is even lower than Barack Obama’s. On immigration, however, their refusal to play ball is ensuring that the wishes of ordinary Americans are being taken seriously. They are, on this issue at least, doing their job.
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