Last week, a draft memo surfaced from the Homeland Security Department suggesting ways to administratively circumvent existing law to allow several categories of illegal immigrants to avoid deportation and, indeed, for some to be granted permanent residency. Most disturbing was the stated rationale. This was being proposed "in the absence of Comprehensive Immigration Reform." In other words, because Congress refuses to do what these bureaucrats would like to see done, they will legislate it themselves.
Regardless of your feelings on the substance of the immigration issue, this is not how a constitutional democracy should operate. Administrators administer the law, they don't change it. That's the legislators' job.
The administration is engaged in an even more significant power play elsewhere.
A 2007 Supreme Court ruling gave the Environmental Protection Agency the authority to regulate carbon emissions if it could demonstrate that they threaten human health and the environment. The Obama EPA made precisely that finding, thereby granting itself a huge expansion of power and, noted The Washington Post, sending "a message to Congress."
It was not a terribly subtle message: Enact cap-and-trade legislation - taxing and heavily regulating carbon-based energy - or the EPA will do so unilaterally.
Well, Congress didn't. Despite the "regulatory cudgel" (to again quote the Post) the administration has been waving, the Senate has repeatedly refused to acquiesce.
Good for the Senate. But what to do when the executive is passively aggressive rather than actively so? Take border security. Sen. Jon Kyl, R-Ariz., reports that President Obama told him about pressure from his political left and its concern that if the border is secured, Republicans will have no incentive to support comprehensive reform (i.e., amnesty).
But border enforcement is, as the administration vociferously argued in court in the Arizona case, the federal executive's constitutional responsibility.
This contagion of executive willfulness is not confined to the federal government or to Democrats. In Virginia, the Republican attorney general has just issued a ruling allowing police to ask about one's immigration status when stopped for some other reason (e.g., a traffic violation). Heretofore, police could inquire only upon arrest and imprisonment.
Whatever your views about the result, the process is suspect. If police latitude regarding the interrogation of possible illegal immigrants is to be expanded, that's an issue for the legislature, not the executive.
How did we get here? I blame Henry Paulson. The gold standard of executive overreach was achieved the day he summoned the heads of the country's nine largest banks and informed them that henceforth the federal government was their business partner. The banks were under no legal obligation to obey. But they know the capacity of the federal government, when crossed, to cause you trouble, endless trouble. They complied.
So did BP when the president summoned its top executives to the White House to demand a $20 billion federally administered escrow fund for damages. Existing law capped damages at $75 million. BP, like the banks, understood the power of the U.S. government. Twenty billion it was.
Again, you can be pleased with the result (I was), and still be troubled by how we got there. Contact Krauthammer, a Washington Post columnist, at firstname.lastname@example.org.