The Slope Is Permanently Slippery

Eric Posner on Obama’s immigration executive order:

What might these ends be? Imagine a President Rand Paul entering office in 2017. An enormous regulatory structure will greet him, nearly all of it the creature of liberal policy-making going back to the New Deal, and it’s his to defer action on. Financial regulation required by the hated Dodd-Frank act, health regulation under the even more hated Obamacare, climate regulation despised by the coal industry, antitrust regulation opposed by big business—in all cases, President Paul will be able to argue that he can follow in President Obama’s footsteps and “defer action.”

To be sure, President Paul will not enjoy complete freedom to defer enforcement. The Constitution’s take-care clause would block him from disregarding the law entirely. Legal precedent establishes that he can’t refuse to spend congressional appropriations on enforcement. Many regulatory agencies enjoy independence from the executive, and private parties can sometimes force agencies to act. The courts say that the executive must comply with specific statutory mandates. And immigration law, as I have argued, falls uniquely under executive authority, as a matter of history and tradition. Still, because most of the regulatory statutes contain pockets of vagueness, and the immigration-law arguments bleed over to those other areas of the law, President Paul’s power to lift regulatory burdens through non-enforcement will be extensive.

The point is not just that Republican presidents can do what Obama has done. It is that enforcement discretion creates an advantage for Republicans—it favors conservative governance and hurts liberal governance. The reason for this asymmetric effect is that the great bulk of federal law is liberal economic regulation, not conservative morals regulation.

This is a good summary of the kind of things the next Republican president will do, and I also think it’s right that there’s an asymmetry where selective non-enforcement is more likely to favor conservative goals. What I continue to dispute is the assumption that Obama’s executive order will play any causal role in this process. Congressional Republicans have relentlessly discarded norms in order to use formally legal mechanisms to advance their goals. Does anyone think that the next Republican occupant of the White House will be any different? This is the political universe we’re already in — as Posner’s work with Adrian Vermeule has quite convincingly demonstrated — and you can’t enforce norms through unilateral disarmament.

I’d also note that there’s nothing new in Republican administrations being, ah, less than aggressive about enforcing liberal regulations. Clarence Thomas’s tenure heading the EEOC is both an excellent rebuttal to the myth that he’s an intellectual lightweight and strong contemporaneous evidence that he was very reactionary. Hans von Spakovsky worked on — and, therefore, against — voting rights in the Bush administration. And so on.

I’d say something similar about David Savage’s speculations that Obama’s order might cause John Roberts to side with ACA trooferism. I think Roberts will do what he wants to do and Obama’s order will be neither here nor there. I can’t resist quoting this, however:

Ilya Shapiro, a lawyer for the libertarian Cato Institute, said the immigration order is the “starkest example” of what he called the president’s “pattern of lawlessness.”

Except for the fact that it doesn’t actually, you know, break any laws. Maybe Shapiro can explain how the executive order is “lawless” after he finally explains what constitutional provision Section 4 of the Voting Rights Act violated…