President Obama's announcement that he will use prosecutorial discretion to semi-permanently prevent five million unauthorized immigrants from being deported has brought the usual accusations of galloping tyranny from conservatives. "Barack Obama: American Caudillo" is the title of Rich Lowry's very dumb column for Politico.
There is more awareness from Ross Douthat, who grudgingly recognizes that George W. Bush broke some important laws in his time. But only by eliding the very worst of the Bush years can Douthat reach his desired conclusion, that Obama's executive actions are an unprecedented imperial power grab. In fact, growth of the imperial presidency is a bipartisan affair, and George W. Bush is a major culprit.
It's important to recognize two things up front. First, that Obama has indeed embraced many of Bush's expansive legal theories about executive power. Second, that this immigration action is very far down the list of questionable actions.
Use of prosecutorial discretion to forestall deportation — which could be easily reversed by a Republican president or supplanted by an immigration reform bill from Congress — is surely less alarming than, say, claiming the authority to assassinate American citizens with no due process. Obama's done that to an American child, and has not provided any legal justification whatsoever.
The assassination program started under the Bush regime. And his legacy of stomping on the Constitution and legal precedent was not limited to that. There was the warrantless wiretapping, which almost resulted in a mass resignation of the head of the FBI, the attorney general, and a slew of top Department of Justice lawyers. There was the use of "signing statements" to announce he would not enforce bits of law he didn't like. There was his refusal to enforce the Clean Air Act even when ordered to by the Supreme Court.
The worst of it, though, was Bush's program of systematic torture. No good intelligence was collected, and dozens of people were murdered in U.S. custody. It was flagrantly illegal. As Jane Mayer writes in her book The Dark Side, the Convention Against Torture "is about as categorical a piece of legislation as it is possible to write. It bans torture absolutely."
But as Dick Cheney and his pet sociopath David Addington discovered, it's easy to get around categorical bans on things. All you do is get some political hack to stamp out a bunch of legal argle-bargle claiming black is white, and don't let anyone see the analysis. Witness the legal and moral subtlety of said hack, one John Yoo:
Cassel: If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?
Yoo: No treaty...
Cassel: Also no law by Congress — that is what you wrote in the August 2002 memo...
Yoo: I think it depends on why the president thinks he needs to do that. [YouTube]
But the best Douthat could muster when the guy from his party was carrying out a profoundly evil, illegal, and fruitless procession of war crimes was an "inarticulate mix of anger, uncertainty, and guilt," condemning torture but trying to excuse the criminals who perpetrated it for being freaked out by 9/11. These sentiments are almost identical to those of Obama himself, as it happens, and they display just as much moral cowardice.
The imperial presidency is a direct result of our janky and outdated political institutions. Nobody shopping for a fresh constitution looks to the American one for inspiration anymore, because it often makes basic governance impossible. A separately elected president and legislature is a recipe for potentially irresolvable conflict. Every single country that has tried U.S.-style constitutions has suffered a collapse of government, without exception. We managed to escape that fate for many years (excepting the Civil War, that is) because of diffuse, ideologically heterogenous parties and a lot of informal norms of governance. All those things are gone or going fast.
Liberals certainly share some of the blame for that. But it is conservatives who are always pushing the legal and constitutional envelope. It is conservatives who refuse to respect the legitimacy of the political opposition. It is conservatives who seek disenfranchisement of their opponents. It is conservatives who have repeatedly taken the nation hostage to extract policy concessions. And it was Mitt Romney who proposed to tear ObamaCare to bits by using executive orders far more sweeping than the immigration ones Obama announced.
And so it turns out that the caudillo reference is unintentionally apt. As Matt Yglesias points out at Vox, American conservatives have long admired the right-wing dictators of Latin America, just as they tend to celebrate extralegal assassination. It may well turn out that America will have a real caudillo at some point. If it does, immigration policy will be the least of our worries.