Nice Try, New Republic

Mickey Kaus Columnist
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TNR vs. NYT: New Republic‘s Danny Vinik takes issue with the New York Times’ “prosecutorial discretion” defense of President Obama’s rumored/threatened extension of executive protection (e.g., “deferred action”) to millions of illegal immigrants. It’s one thing to drop prosecutions on case by case basis, Vinik notes. It’s another to exempt a whole category of people from any possibility that prosecutors may decide to come down on them — that undermines the deterrent effect Congress presumably intended when it made some types of immigration unlawful. If a local county executive says “don’t focus precious resources on drivers who aren’t egregious speeders,” you might drive a bit faster.  But you still don’t know for sure that you won’t get a ticket for going 66 in a 65 zone. But if the executive says “nobody under 70 will get a ticket” — well, then real speed limit will become 70, when the lawmakers intended it to be 65.

Vinik (and the nation’s clever immigration lawyers) claim to have an answer: ‘The president can implement legislation in a way that downplays the importance of deterrence while promoting other values in a way that stays faithful to the statute.” What are these “other values”? According to UCLA law prof Hiroshi Motomura (whom Vinik quotes)

“those values include consistency, predictability, and nondiscrimination (which can be viewed as forms of consistency and predictability in this context) …”

The obvious problem with this clever answer is that virtually any categorical we-won’t-prosecute-you decree will serve the interests of “consistency” and “predictability.” Take the hypothetical that Obama’s defenders seem to have the most trouble dealing with: Imagine Mitt Romney, campaigning on a platform of raising the limit on taxable estates to $20 million dollars (from the current $5.3 million).  Romney wins the election. He’s President! But he can’t get his estate tax bill through Congress. He decides he can’t wait! If Congress won’t act to boost the incentives to “job creators,” he will! His IRS announces that, as a matter of “prosecutorial discretion,” no estates under $20 million that fail to pay estate tax will be pursued by the IRS.  Romney could grant case by case leniency power to IRS auditors and lawyers — but a blanket categorical free pass makes the law so much more predictable, don’t you think? And predictability is important for job creators!  They have investments to make. You wouldn’t want an IRS with the leeway to play favorites — going soft on Republicans, or Romney donors, while coming down hard on dead multimillionaire Democrats.

As a limit on the potential abuse of “prosecutorial discretion,” then, Vinik’s requirement of ‘plus factors’ doesn’t do much limitin’.  Nice try! There will always be other values a President can say he’s pursuing when he grants “categorical” relief from the laws that apply to everyone else. President Romney would still be able to get away with one-man tax-reform-by-decree. Indeed, Vinik opens wide the door to the spectacle we’re now witnessing –– Congress off sitting on the sidelines while various corporate and activist “stakeholders” lobby the president for favorable prosecutorial discretion decrees as if he were the czar country’s primary source of legislation.

There is one brilliant move liberal lawyers could make, a move Vinik only hints at  — that’s to allow categorical relief only to avoid forbidden kinds of discrimination and bias. Motomura again:

“If the [past] guidelines had been administered fairly, uniformity, predictably, and without reasonable concerns about racial and ethnic bias on the part of various actors with enforcement roles, DACA [Obama’s executive amnesty of ‘DREAMers’] might not have been necessary.”[E.A.]

In other words, Presidents may grant “discretionary” relief to whole classes where that’s necessary to protect the victim groups liberals approve of (African-Americans, Latinos, women, the poor, etc) as enumerated by generations of liberal appellate judges. But not to protect anybody else — certainly not to help Romney’s $6-$20 million inheritors. They’re not victims of discrimination, at least not under the post-Warren Constitution.

When I worked for a Senate Judiciary subcommittee one summer in the ’70s, my biggest assignment was to come up with a formula to ensure that awards of attorney’s fees only went to victorious lawyers for “public interest” causes we liked and not to victorious lawyers for evil corporations. I failed. But Vinik and Motomura may have succeeded. They could move the whole difficult battle over presidential power to the familiar terrain of civil rights protection, where liberals win and conservatives lose.

They don’t quite have the balls to make the argument explicitly, though — and it’s hard to believe the Roberts Court would buy it.  It’s just as likely the Court would allow a President to cite values other than “predictability” and “non-discrimination” in justifying a broad exercise of “discretion” — perhaps the values underlying the statute the President is claiming to administer. President Romney,** for example, could cite the Internal Revenue Code’s goal of increasing tax receipts and spurring economic growth — and argue that because a zero capital gains rate would encourage revenue-producing asset sales, he would now exercise his discretion to avoid punishing people who don’t pay their (legislated) capital gains taxes as well as most of  those who duck their estate taxes.

Jonathan Chait is right to be worried.

P.S.: TNR‘s Brian Beutler takes a simpler approach. He appears to argue that, if there aren’t statutory provisions that would make a Romney estate-tax move “slam-dunk illegal” (which there probably aren’t) then Romney is free to go ahead. He’d be “insane,” Beutler says. The voters would probably reinstall the Democrats at the next election. But democracy itself would provide the limit.

Beutler’s theory has the virtue of clarity. It would create a parliamentary-style government except that — absent Congressional intervention — the parliament that mattered would be a parliament of one in the White House, elected every four years. This may be Obama’s emerging ideal. It’s a plausible vision for a constitution. But it’s some other country’s constitution.

The problem, of course, is that “insane” one-man caudillo-like Romney lawmaking might succeed. Romney wouldn’t necessarily lose the next election. Maybe Romney’d rope in enough interest groups — as Obama is now seeking to rope in interest groups — to make his decrees popular with at least 51% of the voters. He’d win the next election–making the interest groups all the more eager to play ball with him next time.

If the people who wrote the constitution wanted to allow a President with 51% of the vote to make law after law that pleased his 51%, they could have written a document that created such an institution. They didn’t, because they were famously terrified of mob rule by the 51%. Instead, they took elaborate — I’d argue, excessive — precautions against that type of one-man democracy.

I don’t think the courts will let Obama give life their nightmare just because he can’t pass his awful “amnesty-first” immigration bill.


** — Substitute President Ryan if you wish.

Mickey Kaus