|The Federal Register|
Now that Thanksgiving is past and the furor in Ferguson has calmed down a bit, Americans can get back to what we do best: argue about politics.
When last we heard, the big deal in Washington was the President’s executive actions on immigration policy. Republicans cried fowl! Alabama Senator Jeff Sessions said it most concisely. “The president is endangering our entire constitutional order,” he avers.
Democrats respond by pointing out that Republican presidents have done the same thing.
It sounds a lot like playground logic…
…. Mom, Barack broke the rules!
…. Yeah, Mom, but so did Ronnie and George.
I know what my Mom (or yours) would say: “Two wrongs don’t make a right.”
One of the adults in Congress expressed a more balanced view. Senator Lindsay Graham (R-SC), referring to the House of Representatives controlled by his own party, said on CNN: "Shame on us as Republicans for having a body that cannot generate a solution to an issue" involving national security as well as cultural and economic considerations.
But, were the President’s actions legal?
I would guess that what he has outlined is legal. The President didn’t wake up the day after Election Day and decide to do this. I would bet his legal staff burned the midnight oil for months identifying what they thought he could and couldn’t get away with. Moreover, his apologists are right about Presidents and executive orders. The website fivethirtyeight.com published a chart of executive orders going back to George Washington. It’s an interesting graphic showing a peak in the number of executive orders during the FDR administration.
I think there’s actually a larger question: How did it get this way? How can a President, in effect, create laws through executive action? Isn’t that the role of Congress? Isn’t that the Constitutional order (as Senator Sessions put it)?
First, a bit of history. Two separate events provide the basis for an expansion of executive powers. In 1935, the Supreme Court decided Humphrey’s executor v. United States in favor of the plaintiff. The decision rendered a President powerless to fire a duly appointed commissioner (in this case, a commissioner of the FTC). Unlike cabinet departments, Congress appoints commissioners to administrative bodies that are an extension of their legislative power. The FCC and the FTC are examples.
The addition of so many commissions, agencies and cabinet departments during the Roosevelt administration led to the passage of the Administrative Procedures Act of1946. This law allows government bureaucrats to write procedures that turn the vague laws passed by Congress into rules and regulations.
These legal events – which most people have never heard of – have led to administrative mission creep, extraordinary complexity and lack of accountability in the federal bureaucracy.
“So what?” you might say. We all know how unresponsive and incompetent government bureaucracies are. How does that relate to the current hoo-haw over immigration?
The sheer size of the federal government leads to what economists call “rational ignorance”. The only people who read the Federal Record to see what new rules are being written are industry lobbyists and special interest groups seeking to influence the outcomes in their favor. In these cases, they are likely to get their way since if no one else knows, no one will object.
Who knows what rules have been written to enforce immigration laws? Immigration and Customs Enforcement (ICE) reports through the Department of Homeland Security to the President. If DHS bureaucrats have written the rules, they can re-write the rules.
Is it any surprise that anti-government Republicans have found a following?
WHO WILL LEAD?