It's a simplistic and unfair--what did you expect? it's Saturday Night Live!--depiction of the debate over President Obama's executive order on immigration last week, but it gets the heart of the whole legal and political argument. Executive orders have been around as long as the American presidents have, but as our national government has increasingly broken down and executive orders have--predictably--grown in size and scope to fill the gap, more and more people have paid critical attention to the way they allow presidents to, in essence if not in actually, make law. Regarding Obama's order, plenty of people's opinions are quite clear: the president has crossed a Rubicon and become "an elected Caesar, a Cheney for liberalism, a president unbound." Do I disagree? Partly, but only partly; I really do think his action, however beneficial on its merits or legal on the basis of relevant statutes, was unconstitutional--or at the very least, involved what I called elsewhere "a rather, shall we say, impressive expansion of presidential authority."
My comments sparked a fair amount of debate on my own blog and, particularly, following a very thoughtful and critical post by my friend David Watkins. To respond, let me try to explain myself more clearly by way of a few key questions:
1) What is the difference between constitutionality and legality, and do I think one is prior to the other?
2) What does procedural traditions, norms, and precedents have to do with either of those?
3) What specific norms do I think Obama's action violated, in light of the actually existing history of executive orders?
4) Isn't it irresponsible to toss around terms like "unconstitutional" in our current political climate anyway?
So let me try to work some of these out, beginning with the first two put together:
1 & 2) "Constitutionalism" is usually used to denote the idea that those individuals and entities in possession of governmental authority are circumscribed in their use of governmental power by and agreed upon rule of law. In the American case, the rule of law is--for most citizens anyway--understood as very much bound up with the idea of popular sovereignty, so much so that it becomes easy for most Americans to identify the U.S. Constitution, as supposedly that which provides the means by which the will of the people, with the rule of law itself. Obviously there are some who disagree; for example, a small but not insignificant minority of Americans see the Constitution as properly reflecting the rule of law in a Biblical or explicitly Christian sense. But either way, the assumption is usually that constitutions are a function of the rule of law. I disagree. As David noted in his post, the idea of law itself is an "essentially contested concept"; I would say the same for constitutionalism, which I see as rather distinct from, and likely actually parasitic upon the idea of law. My guiding lights here are such radical democratic--and Arendtian--political theorists as Hannah Pitkin, Melissa Williams, Douglas Lummis, and especially Sheldon Wolin. For all of these folks, to one degree or another, a close study of the history of constitutions--both American and otherwise--seems to suggest that the last thing they involve is a concern with what David called "the interactions of the different parts of government with the governed," and instead focus overwhelmingly on establishing preventative rules so as to protect individuals and property from invasive government action. Here's Wolin:
Stated simply, American thinkers conceived a constitution primarily in terms of legal limits and procedural requirements for a selected set of institutions which were then identified as "government" and declared to be formally separated from social institutions of class, status, religion, and economy. Ideologically, the formal separation was justified on liberal grounds; that is, it promoted political equality, toleration, and private rights, especially those of property....
[A constitution] becomes one only when it is put into practice. Practices consist, first, in offices that designate the location of authority and, second, procedures or formalities that legitimate the exercise of power. There is, however, more to "high offices." They are publicly visible, and those who hold them not only are said to discharge an office's responsibilities but also to perform the office. High political office is a symbolic per(form)ance. Those who hold them are expected to display public virtues and to preserve public formalities. The authority of [constitutional] office is, therefore, both a right to power and a rite of power....
Modern constitutionalism, from Hobbes and Locke to Rawls and Nozick, has developed its notions of citizenship almost exclusively through the language of contract. Although that tradition of political argument puts great stock in the notion of "performance," what it means by performances is the virtual opposite of its political-cultural meaning. To perform a contract is to complete it....It is not a question of special skills but of knowing what a promise is and then of discharging it. (Wolin, The Presence of the Past [1989], pp. 13, 85)
So what do I take from all that? I conclude that whatever the popular imagination invests in our Constitution, in function what it really does is serve to discipline the democratic wishes of the American people so that their expectations that their rights and property will be protected depend upon the procedural performance of those invested with high office. David makes use the arguments of political philosopher Jeremy Waldron to claim that the law, as something which is both knowable and reliable, is empowering of the freedom of citizens, and I don't dispute that reading at all (as David knows, I'm quite a fan of Waldron). But I think it's beside the point. When we speak of "unconstitutional acts," we're invariably speaking of whether or not someone in high office has performed an act in such a way as to show that she or he has respected the distinct and limited (and limiting!) terms of our supposed contract with them.
I don't think speaking in that way is itself a bad thing; on the contrary, I recognize that constitutionalism, as the above makes clear, has historically been an enormously powerful tool in promoting the liberal imagination and providing substance to basic individual rights and protections. But I don't think it's the only such tool available to us in the history of political thought; I think fundamental guarantees of personal liberty can be realized just as well in more parliamentary or populists contexts--and with the added advantage that such "uncodified" governing frameworks are far less likely to get caught up in myths about the rule of law and the will of the people than is the case with our founding document. However, for better or worse that's not the regime which we have--despite changes in party, electoral, and legislative structures pushing us in those more democratic directions, we are still governed by a constitutional framework, with all its attendant expectations. To insist, in opposition to the logic contained within this conceptual package, that an action which is allowable within existing statutes but which is performed in a way that violates symbolic precedents and procedural norms which that come to be assumed over the passage of time must nonetheless be defended as "constitutional" is to, I think, work against the grain which shapes the whole appeal of constitutionalism for many in the first place. It seems to me, to the contrary of this position, that it is entirely possible (indeed important, stuck as we unfortunately are with our present system of government) to insist that an action can be both legal and unconstitutional. That is it may, on the one hand, fulfill our democratic concept of law--as in this case, by making the administration of immigration policy more knowable and reliable, lessening its ambiguity and increasing the policy's clarity and match to widely recognized preferences--but also, on the other hand, show disrespect for (admittedly, always evolving) informal expectations and procedural rites that, however frivolous they may seem to those in favor of the administrative improvement, are nonetheless entirely a piece in the way both parties employ (and have always employed) the rhetoric of "unconstitutionality."
3) So, having written at length about procedural rites, symbolic precedents, and other stuff which many commenters dismissed as so much "woo," let's get to brass tacks: what is it that makes this particular executive order such an impressive and challenging leap in administrative authority? The simple fact that it was taken in wake of a midterm election where President Obama's party suffered numerous defeats, and in the face of fierce (and, let it said, essentially incoherent) opposition from the party which will take control of Congress in less than two months' time. Yes, of course I know we don't have a parliamentary system and that the president's executive authority stands independent of Congress; and yes, I also know that Congress has been abandoning its legislative responsibility for decades. Still, like it or not, the contorted fiction we tell ourselves about the will of the people has created assumptions about what we mean when we speak of something being "constitutional" or not. To make use of a common example which many who have supported Obama have invoked--when President Reagan and the first President Bush ordered extensive administrative changes (though, it must be said, not as extensive as Obama's) to just who was and was not going to be subject to America's immigration law in 1987 and 1990, it was following immediately in the footsteps of the 1986 comprehensive immigration reform passed by Congress and signed by the president. And so it goes back through history, or at least 20th-century history (the Civil War is obvious a pretty unique and precedent-setting case on its own): the president is presumed to be able to responsibly take direct executive action, however outrageous (and President Roosevelt's orders, for example, were often very outrageous), in conformity with recent popular, political, and/or partisan support. This isn't a democratic defense of those executive orders, but simply an observation that I think is indisputable: whatever theories we employs to shape our conceptions of government, our regime--like many other constitutional democratic regimes--our quick to swallow abuses of constitutional limits if they are done in a way which conforms with symbolic representations of the people's supposed will. (Does this mean that I think that the push-back against Obama would have been less if he'd taken this executive action before the election, or ideally immediately after the last failed attempt by Senate Democrats to get House Republicans to allow a vote? I certainly do.)
4) Finally, about the appropriateness of this kind of language: shouldn't those of us who are critical of the president's action, but supportive of its administrative consequences (and even, in my case at least, supportive of its legality) stop using the term "unconstitutional," since that is just red meat for the president's opponents? Perhaps...but then again, how can we make our point otherwise? We've seen a major executive reach into the administration of our immigration laws, done on the authority of one man and one man alone. That's not good for democratic self-government. Those kind of administrative invasions into the substance of our laws can be made acceptable and legitimate, if our governing institutions reflected the contesting interests of the voting population in a more populist or parliamentarian manner. But as we don't have those kind of institutions, those who dislike legislative overreach--even if legal!--have to content themselves with falling back on the ritual language of "unconstitutionality." That is, Obama certainly isn't a tyrant in any substantive sense (yes, I was engaging in hyperbole), but he's been forced and/or incentivized into disregarding constitutional norms, however flaky the relationship of those norms to democracy actually are, and those flaky traditions are one of the main controls we have left. Should Obama be able to point to the fact that, in regards to immigration at least, Congress has become far more dysfunctional, and the parties far more uncompromising and therefore legislatively incapable, than was the case 25 years ago? I absolutely think so. But, given the norms we have, I think he should also be obliged to recognize the legitimacy of those who say what he has done as unconstitutional, if only to press the case that, given how our electoral and party systems are ruining their own ability to govern, it was inevitable that unconstitutionality would increasingly become a norm for presidents, if it hasn't already.