The Case Against Obama's Nuclear Option

Even if reform is needed and legal, endowing the presidency with new, unilateral powers is a dangerous precedent.

National Journal

On the issues of immigration reform and America-bolting corporate "inversions," I sympathize with President Obama's desire to vastly expand the executive branch's authority. Bypassing Congress may be legal. The reforms he wants may be a good idea. But when I look beyond the next election and set aside my issue biases, I reluctantly conclude that it would be very wrong.

Depending on how far Obama extends presidential authority — and he suggested Wednesday that he's willing to stretch it like soft taffy — this could be a political nuclear bomb. The man whose foundational promise was unity ("I don't want to pit red America against blue America") could seal his fate as the most polarizing president in history.

Is it legal? Treasury Secretary Jacob Lew said last month that after reviewing the tax code his department determined that "we do not believe we have the authority" to act unilaterally against companies that renounce their citizenship to take advantage of friendly tax rates and regulations abroad.

On immigration, Obama said last month, "actually, I don't" have authority to stop deportations. Responding to a heckler who argued otherwise, Obama said, "The easy way out is to try to yell and pretend like I can do something by violating our laws. And what I'm proposing is the harder path, which is to use our democratic processes to achieve the same goal that you want to achieve — but it won't be as easy as just shouting. It requires us lobbying and getting it done."

Immigration and tax reform didn't get done, and the president dispatched his lawyers in search of loopholes. Here's a whopper: Obama suggested Wednesday that the short-term cost of dealing with the southern border crisis could justify sweeping unilateral action on immigration reform. "That's well within our authorities and prosecutorial discretion."

Which brings us to the next question. Even if acting alone is legal "¦

Are the proposed reforms a good idea? The inversion issue is complicated, but I would focus my attention on companies such as Mylan that profit off U.S. taxpayers while renouncing U.S. citizenship. Even the CEO's father — Sen. Joe Manchin of West Virginia — thinks that what she did should be illegal.

On immigration, reform is a great idea. Conservative Republicans are dumbing down the definition of "amnesty" to cover any act that doesn't lead to the deportation (or self-deportation) of the approximately 12 million people living in the United States illegally. The other extreme would be to immediately grant them legal status and/or citizenship, and to embrace unlimited immigration going forward. Both of the scenarios are unrealistic.

Between those two poles lays an enormous middle ground that would benefit both parties politically, uphold the rule of law, and be true to America's history as a melting pot.

Anti-amnesty Republicans are almost exclusively to blame for the current gridlock, defying House Speaker John Boehner and other pragmatic party leaders who understand that the GOP has a grim future as long as Hispanics, Asians, and other nonwhites think the Republican Party hates them.

Obama's party is partly responsible for this mess, because of the cynical choices made during his first two years in office to punt on reform, in part because the Democrats who ran Congress wanted to be able to portray the GOP as anti-minority in the 2010 elections.

Obama denies culpability, but the record is clear, and almost any Democrat in Washington will concede, privately, that the president broke his promise to make immigration reform a top priority in 2009-10.

For argument's sake, let's say Obama is right on the issue and has legal authority to act. The big question is "¦

Would it be wrong to end-run Congress? Another way to put it might be, "Would more polarization in Washington and throughout the country be wrong?" How about exponentially more polarization, gridlock, and incivility? If the president goes too far, he owns that disaster.

The most important context to consider is the mood of the country. Eighty percent of Americans think the political system is broken, according to a new NBC News/Wall Street Journal poll, the same percentage that disapproves of Congress. A strong majority think Obama is doing a poor job as president. What those numbers tell me: Most Americans understand that both parties are responsible, though not equally, for breaking politics

In a landmark study, the Pew Research Center recently concluded that Americans "are more polarized along partisan lines than at any point in the past 25 years." The average gap in views between Democratic and Republican partisans has nearly doubled, with most of the increase scored during the Bush-Obama era.

My colleague Ron Brownstein wrote a watershed book in 2007, The Second Civil War, that spoke of this divide. "The political system has evolved to a point where the vast majority of elected officials in each party feel comfortable only advancing ideas acceptable to their core supporters — their "base," in the jargon of modern campaigns. But progress against these problems, and almost all other challenges facing America, requires comprehensive solutions that marry ideas favored by one party and opposed by the other."

Regardless of the justification, acting alone denies Obama a full view of the problem and, with no marriage of ideas, he almost certainly exacerbates the "dangerous impasse" that Brownstein labeled a civil war.

New York Times columnist Ross Douthat argues that this isn't merely a case of a president responding to a do-nothing Congress. "It's limited caesarism as a calculated strategy, intended to both divide the opposition and lay the groundwork for more aggressive unilateralism down the road." If you don't buy any other argument, consider this one: Endowing the presidency with extraordinary power would be an extremely short-sighted and selfish move.

Do Obama and fellow Democrats really think the Oval Office will never again be occupied by a Republican?

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