"The Congress had ample opportunity to pass the comprehensive immigration reform package that I wanted as I wanted it. They did not do so, and have thus forfeited their right to legislate. In their failure to make a law, they have ceded the right to make a law to me and me alone."
President Obama will not say these words tonight when he announces his executive order effectively granting legal amnesty and the concurrent privilege of guest-worker status to millions of individuals, but his actions logically -- indeed necessarily -- imply this sentiment. What he has said, time and time again, is that because Republicans in the legislative branch of government have not legislated on this matter, that he has a responsibility to act.
The argument contradicts not only what he himself has argued up until this point, but the logic of our constitutional order and the separation of powers at its heart. The right to legislate belongs to the legislative branch. It says so self-evidently in name and, even more explicitly, in the black ink of the Constitution's very first article. A co-equal branch of government heretofore by law, the rationale implicit in the president's imminent action reduces the Congress to a subservient body who must act according to the executive's will or be superseded. If the president's assumption of legislative power tonight is justifiable, then the legislative branch serves at the pleasure of the executive.
One label for conduct apropos to this -- the executive disregarding and assuming the legislative power -- has made more appearances that any other in the course of history. That label is "tyranny". The president's decree will be met with a litany of adjectives, both condemnatory and laudatory, but none will have a historical resonance surpassing "tyranny". As has been written, legislative power is a "right...formidable to tyrants only."
The most adverse significance of this abrogation will not be felt tonight, in the coming weeks, or even in the next few years. Presidential acts that trespass upon the limits of the constitution, while done by one president of one party at one time, tend to become bipartisan and habitual as the years progress. Once this rubicon is crossed, the odds of the president's successors acting in an identical vein increases exponentially.
One of these successors will eventually be a Republican. They will enact a new law by executive order, and they will justify it on the grounds that a Democratic Congress did not pass a law that said-Republican president desired. When Democrats howl in protest, as they will, declaiming the president as an unrepentant shredder of the Constitution, they will undoubtedly disregard the fact that the precedent for such usurpation was created by one of their own.
