The never-mind presidency
WASHINGTON — At this intermission in the immigration debate, with House Republicans preparing to look askance at the Senate’s handiwork, the argument is becoming ever stranger. It has reached a boil, especially concerning border security, at a moment when illegal entries are at a 40-year low and net immigration from Mexico has recently been approximately zero, largely because enforcement efficiency has already been substantially improved and because America’s economic growth is inferior to Mexico’s. Yet some Senate Republicans support spending $46 billion over 10 years to, among other things, double the number of border agents.
The Government Accountability Office says border security in 2011 was about 84 percent effective. A much-discussed aspiration is 90 percent. So the $46 billion is supposed to purchase a six-point improvement. This embarrassing militarization of the border was designed to entice a few of the 14 Senate Republicans (of 46) who joined all Democrats in supporting the Senate bill. Some senators expect House Republicans to be swayed because a minority of the Senate minority supported the bill. These senators should trek to the other side of the Capitol and, like Margaret Mead among the Samoans, mingle with the natives.
On a Friday, the Senate received a 114-page amendment to the (by then) more than 1,000-page “Gang of Eight” bill, which the Senate passed the following Thursday. Senators can repent at leisure after they read details such as: Never mind what maps say, the Senate says Nevada is a border state. So Majority Leader Harry Reid’s constituents, and those of Nevada’s Republican Sen. Dean Heller, who supported the bill, can feast on border security pork.
Such provisions reflect an imperative of legislating in a continental nation. Because durable, principle-based congressional majorities are rare, legislation often becomes large and complex through the process of cobbling together a coalition of legislators more attuned to parochial interests than philosophical arguments. Logrolling is necessary to this process, but it necessarily reduces the moral momentum of the final product.
Whatever momentum the Senate imparted to reform is a wasting asset. The House is unlikely to complete its immigration legislation before the August recess, when Republican members will return to their districts, about which The Wall Street Journal says: Only 38 of 234 House Republicans — 16 percent — represent districts that are at least 20 percent Hispanic. And “only 28 Republican-held districts are considered even remotely at risk of being contested by a Democratic challenger.” Democrats will not accept a bill that does not provide a path to citizenship for illegal immigrants, and in a recent poll almost half of Republicans said they were less likely to support a legislator who supports a pathway.
Four Augusts ago, Congress was busy passing — in order to find out what was in it — a different mammoth, because “comprehensive,” bill. During the August 2009 recess, legislators conducted often tumultuous town halls where they discovered that intensity resided disproportionately among opponents of the Patient Protection and Affordable Care Act. Opponents’ anger was registered emphatically in congressional elections 15 months later, which is one reason why the implementation of the act’s most onerous provisions were delayed until 2014, after the 2012 presidential election.
The PPACA remains unpopular, and there are congressional elections in years divisible by two — not even the Obama administration can ignore this constitutional fact — so last Tuesday the administration said this about the act’s mandate that in 2014 large employers provide expensive health care for their workers or pay a substantial penalty: Never mind.
Although the Constitution has no Article VIII, the administration acts as though there is one that reads: “Notwithstanding all that stuff in other articles about how laws are made, if a president finds a law politically inconvenient he can simply post on the White House website a notice saying: Never mind.”
Never mind that the law stipulates 2014 as the year when employers with 50 full-time workers are mandated to offer them health care or pay fines. Instead, 2015 will be the year. Unless Democrats see a presidential election coming.
This lesson in the Obama administration’s approach to the rule of law is pertinent to the immigration bill, which at last count had 222 instances of a discretionary “may” and 153 of “waive.” Such language means that were the Senate bill to become law, the executive branch would be able to do pretty much as it pleases, even to the point of saying about almost anything: Never mind.
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