Last Thursday, the president announced new executive actions on immigration. In short, the president instructed the Department of Homeland Security to expand eligibility for deferred action from deportation to a broader swath of undocumented individuals and expand work permitting for individuals, particularly skilled workers. These actions led to moral outrage from Republicans who found the moves to be unconstitutional, illegal and unconscionable.
This moral outrage comes despite substantial Supreme Court case law allowing presidents to exercise enforcement discretion in such ways. It also comes in the tradition of many other presidents — Democrats and Republicans alike — who used executive power to affect U.S. immigration policy.
My colleague, Tom Mann, wrote about how disingenuous has been this Republican response, noting:
The crocodile tears in reaction to President Obama acting well beyond his constitutional authority and destroying prospects in Congress for bipartisan agreement on a range of pressing public problems, including immigration, are laughable.
And he is right. The GOP criticism of the president rests on the shakiest of legal and constitutional foundations and they are politically precarious. The shock and disdain are more theatrical than based in reality.
However, on Friday, the president showed his own faux moral outrage on the issue, and as Mann called out Republicans, so too should the president’s actions be highlighted. Obama, after announcing his executive actions from the White House, flew to Las Vegas on Friday to hold an event at a school in an effort to motivate public support both for his actions and to move legislation in Congress.
He lamented how procedure has held up the House from approving the Senate-passed immigration bill. He noted:
It has now been 512 days — a year and a half — in which the only thing standing in the way of that bipartisan bill and my desk so that I can sign that bill, the only thing that’s been standing in the way is a simple yes-or-no vote in the House of Representatives. Just a yes-or-no vote. If they had allowed a vote on that kind of bill, it would have passed. I would have signed it. It would be the law right now.
The president is right; there are a majority of votes in the House of Representatives to pass the Senate bill — or at least legislation similar enough to be worked out in conference. However, the president is outraged that House Republicans would use procedural power — namely, the Speaker’s nearly absolute power over the scheduling of legislation — to undermine what a majority of the chamber wants. The “yes-or-no vote” he wants is a simple majority vote on passage of the bill.
That anger at procedure would be fine and proper if the president didn’t benefit from such procedural roadblocks himself.
Just this week, procedural roadblocks in the Senate prevented the president from having to take a position (finally) on whether the Keystone XL pipeline should be built. Despite 59 votes in favor of a bill authorizing the construction of the pipeline (as has been passed by the House already), the Senate rejected the measure on a procedural vote. The response from the president was not outrage at the Senate failing to give a House-passed bill a “simple yes-or-no vote.”
The president’s words on immigration hold true for Keystone XL. “If they had allowed a vote on that kind of bill, it would have passed.” Instead, the president found political cover in the ability of Senate Democrats to filibuster the bill, further delaying a White House position on the controversial energy project.
The president’s ability to reap the benefits of Senate procedure is fine, as those are the Senate rules governing such policy. However, the House rules also allow the Speaker broad discretion to schedule votes on legislation. This week, the president exercised his own broad discretionary powers over the enforcement of immigration policy, just as Speaker John Boehner (R-Ohio) has exercised his scheduling discretion to hold up immigration reform.
Is a sustained filibuster on Keystone XL, the decision to defer enforcement of immigration law or the failure to schedule a vote on comprehensive immigration reform (CIR) the right paths forward? That’s an entirely different debate to have. The reality, though, is that they all originate from the same sources: institutional power and procedure. The president’s anger about the procedural tactics around CIR are much like the “crocodile tears” that Tom Mann described about recent Republican reactions.
Complaints about procedure are largely uninteresting. As my recent exchange with Georgetown University’s Jonathan Ladd highlighted, people largely don’t care about procedural fights and the ones who do are always on the losing end.
On immigration legislation, the president’s position is being hindered by procedure. And on other issues, his position is strengthened by procedural tactics. The result: The president is expressing fake moral outrage to criticize Republicans expressing fake moral outrage, and so, the theater of politics enters its next act while the curtain falls on America’s policy demands.
Hudak is a fellow in Governance Studies at the Brookings Institution and managing editor of the FixGov blog.