Obamnesty, what to do

There are as many ways to express disgust with President Obama’s unlawful amnesty as there are talented conservative pundits prepared to write about it. The real question is what, if anything, can be done to negate the amnesty.

Impeachment is not the answer. The votes don’t exist to remove Obama from office. Nor should Republicans attempt impeachment. Doing so would probably hurt Republican standing in the run-up to the crucial election of 2016.

In any event, impeachment is off the table. Republican leaders have made this clear. Jeff Sessions reiterated it at a Heritage Foundation event this morning.

A government shutdown also appears to be off the table, and rightly so. Even if Republicans mustered the will for a shutdown, they would eventually back down, as happened last time, because the public would again turn against them. As with impeachment, the likely consequence would be a loss of standing in the eyes of the electorate.

I have argued in favor of denying the funds necessary to implement Obama’s program of issuing papers to illegal immigrants. However, as Ramesh Ponnuru said at Heritage today, Obama would likely find the money necessary to carry out his amnesty. This is not to say that Republicans shouldn’t try to use the power of the purse; they just shouldn’t count on it working.

Some Republicans have advocated refusing to confirm Obama’s appointees. Depending on whom Obama nominates, this idea might have merit in its own right. But it’s not likely to force Obama to back down on amnesty. Obama doesn’t expect many of his important judicial nominees to be confirmed in any event. At most, he would try to break the logjam through some sort of deal — one that sees Republicans confirming nominees they might otherwise not and making concessions on immigration, as well.

What about legal challenges? The threshold here is a plaintiff with legal “standing” to bring the lawsuit. Obamnesty is a serious affront to our constitutional system, but who has suffered injury concrete enough to meet the standing requirement imposed on plaintiffs in a lawsuit?

There are obvious candidate: Congress whose power has been usurped; the states whose resources will be strained; unions whose members likely will have fewer employment opportunities; and others. However, during the Heritage Foundation conference two first-rate legal scholars — Prof. Jan Ting and John Malcolm of Heritage — expressed skepticism that the “standing” barrier can be overcome here. In addition, courts traditionally have been reluctant to decide “political” questions involving disputes between the executive and legislative branches.

I’m a bit more optimistic. The court created doctrine of standing is subject to manipulation. If judges are sufficiently outraged by Obama’s power grab, they can find standing for one or more of the types of plaintiffs described above.

Moreover, by executing its power of the purse aggressively, Congress can perhaps force Obama into methods of circumvention that will improve its arguments in favor of standing. That’s another reason why Congress should embrace this approach.

As for the “political question” doctrine, it seems increasingly like an anachronism these days. Indeed, it is almost perverse, in this age of aggressive assertions of executive power by both presidents of both parties, for courts to bow out of cases challenging highly controversial efforts to bypass the legislature. In a sense, these cases (as opposed to ones where the president and Congress together enact a law) seem like precisely the ones in which judicial intervention is warranted.

To be sure, the Constitution provides Congress with the impeachment remedy. But given the vote threshold for removal and the near certainty that the president’s party will block impeachment when the issue is a president’s assertion of power to implement a policy favored by his party, impeachment is not a practical remedy in this context. Thus, apart from “modesty,” there is no non-technical reason why courts should duck cases like the one Obama has provoked. And in view of the immodesty of the modern judiciary, modesty is a dubious barrier.

I don’t mean to say that litigation will likely negate Obama’s amnesty, only that it may provide a better shot than is generally thought.

Congress should not, of course, confine its response to litigation. In addition to litigating, Congress should use the power of the purse to gum up the works and perhaps increase the prospects of succeeding in court and the power to block nominees as a means of registering protest and exacting a price.

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