Author Danny Vinik

How Much Has the Obama Administration Defied the Law?

Danny Vinik Leave a comment

It’s a constant critique from the right that President Obama has ignored and flouted federal law more than any other administration in history. From not deporting DREAMers to the delaying the employer mandate* to not officially labeling Egypt’s coup a “coup” to today’s announcement by Attorney General Eric Holder that he’ll instruct prosecutors to leave out the amount of a drug found on low-level, non-violent criminal so that mandatory minimum laws are not invoked, the Administration has walked a tight line with regards to the law. Today’s announcement a major step for the Justice Department and has been greeted by applause by liberals. But is it legal?

As someone who is relatively new to political journalism, my biggest question is whether conservatives are right that the Obama Administration has ignored the law and used selective enforcement of different laws to advance its own agenda more than any other administration before it. That’s a pretty big charge – particularly after the Bush years – and if it’s right, it’s something we need to look at more closely. I’m going to look into this more, but I want to hear more experienced journalists chime in on this question. Those reporters who have been in DC for decades and have been around numerous administrations should be able to put this in context. The fact that I haven’t heard much from the MSM on this has led me to believe that the Obama Administration is, in fact, not ignoring the law more than any before it. But the last few weeks have seen the White House implement a couple of policies that should at least make us ask the question.

On the other hand, if conservatives are right and Obama has defied the law more than any before it, that’s a scary precedent. The combination of both President George W. Bush’s and President Obama’s disregard for federal law, plus a massive expansion of the surveillance state, is a scary path to be on. It’s bipartisan approval to ignore Congress. That’s not okay. The common saying is that the current Congress can’t bind future Congresses. After all, a future Congress can just pass a new law that overrides a past Congress. But the same cannot be said of the Presidency. The executive branch IS bound by the current Congress and only the current or a future Congress can change that. The President can’t simply decide to ignore past laws, but that seems to be exactly what President Obama has been doing.

I don’t have any answers here, but I want to lay out some questions:

  • Is this Administration’s selective adaptation of laws new?
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  • If so, is it acceptable? Are we comfortable with this level of Executive Branch autonomy?
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  • If not, is it still large enough to warrant increased coverage?
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  • After the last two administrations, how do we stop the White House from falling down “the slippery slope?” What safeguards can we erect so that no White House takes its power too far?
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  • If not, is it still large enough to warrant increased coverage?

The President’s refusal to label the coup in Egypt as a coup was particularly striking to me. Under any ordinary definition, what happened in Egypt was a coup. Except if the Administration had officially labeled it as one, it would have been required by law to cut off aid to Egypt. Of course, it had no desire to do that so it just refused to label it a coup and aid has continued. That’s not acceptable. I’m a proponent of foreign aid and understand its importance in the Middle East. But laws are laws. If Obama wanted aid to continue, he should have taken his case to Congress. Liberals may applaud Obama for finally acting proactively, but how would they react if a Republican President had ignored a law like that? They would’ve been furious and rightfully so. Presidents need to adhere to laws, both those passed during their administration and before it.

I know President Obama is fed up with the do-nothing Congress he’s stuck with and wants to find any means to sidestep it. unfortunately, the founders designed our Constitution to prevent exactly that so those workarounds are few and far between. Are we okay with the President stretching the definition of his authority when Congress is gridlocked? It’s yet another question we need to look at more closely, because over the past couple of years, the Administration has made a number of bold policy plays that are borderline, if not outright, illegal. It’s time we start asking ourselves how much of this is okay.

*Sarah Kliff had a good post on Wonkblog analyzing whether the Administration’s delay of the employer mandate was legal. It’s not entirely clear

Defunding Obamcare Doesn’t Change Odds of Immigration Reform

Danny Vinik Leave a comment

Byron York, the conservative reporter for the Washington Examiner, penned a piece on Monday about how Tea Party activists have focused more on defunding Obamacare than opposing comprehensive immigration reform during the August recess. York notes that this could be a major boon for immigration reform’s chances of passing the House:

GOP activists should also keep in mind what they can change and what they can’t. And at the moment, the thing they can change is not Obamacare but immigration reform.

If August goes quietly on the immigration front, some Republican lawmakers may return to Washington with the sense that voters back home don’t really mind that immigration reform goes forward. And then it will. If, on the other hand, lawmakers hear expressions of serious opposition at town meetings, their conclusion will be just the opposite. And reform will likely go down to defeat.

So Democrats don’t really mind if Republicans use up all their grass-roots energy railing about Obamacare. It’s already the law. What would be a problem for Democrats, and for some pro-reform Republicans, is if the GOP grassroots concentrated its fire on immigration reform. That could well mean the end of President Obama’s top legislative priority for his second term.

The Washington Post’s Greg Sargent and Washington Monthly’s Ed Kilgore picked up on this as well today, but I just can’t see any way this happens.

There are really three possible ways that immigration reform passes:

  1. A majority of Republican House members support it so Speaker John Boehner can bring it to the floor without breaking the Hastert Rule. This would require at least 117 House Republicans to support the legislation. Boehner will only have those votes if he brings a very conservative bill to the floor. But such a bill would receive no Democratic support and would also lose a number of Republicans. With only 234 House Republicans, the Speaker can only lose 16 of them or else the bill won’t pass. This puts him in a bind. Any bill that receives majority Republican support will lose too many moderate Republicans to pass.
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  2. Boehner breaks the Hastert Rule and passes immigration reform with strong Democratic support. This would almost surely end his speakership and is thus highly unlikely to happen.
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  3. Seventeen House Republicans agree to sign a discharge petition with all House Democrats (or a couple more House Republicans and a few less House Democrats) so that the bill is automatically brought to the floor, without support of House leadership. This would be an incredibly risky move for any Republican. It would antagonize the top Republicans and likely lead to a primary challenge. Thus, it’s also highly unlikely to happen.

Given those three possibilities, does less pressure from the base change anything? Maybe a bit. A few Congressmen may feel more willing to vote for the bill than if they faced major pressure during the recess. But let’s assume options two and three aren’t happening. That means that a lot of Republicans will have to support a moderate bill so Boehner doesn’t break the Hastert bill, but it still receives Democratic support to pass. The Tea Party hammering away at defunding Obamacare may convince a couple House Republicans that supporting moderate legislation is acceptable. But I can’t see how it will convince enough of them.

Not to mention, the reason Tea Party activists aren’t up in arms over immigration reform is that, as York writes, they think they’ve killed it already. If it comes back from the dead, they aren’t going to sit around and continue yelling about defunding Obamacare (well, they’ll still do that some surely). They’re going to scream at their representatives to oppose the bill.

How many of those House Republicans who supported the bill when they didn’t hear opposition to it during the August recess are still going to support it when that opposition does materialize? The answer: Not many.