Conservatives have been critiquing President Obama’s proposed executive amnesty to millions of illegal immigrants. But the principle underlying the proposal is one that conservatives might want to accept rather than criticize. He is refusing, under certain conditions, to take action authorized by law. That is, he is choosing to allow certain categories of private action to stand by refusing to apply authorized responses.
While one might disapprove the outcome in this particular case, the principle on which the president acts would seem to tend toward conservative ends: the executive’s failure to act leaves private activity alone that would otherwise be governmentally disturbed. Given the increasing penchant for government to meddle in people’s lives, I’d guess that a recognized prerogative, under conditions similar to the current dispute, of the executive to refuse to take action where authorized could more often serve conservative ends than the contrary principle.
I frankly do not see the threat to the separation of powers decried by so many conservative commentators. There is a difference between an executive refusing to prosecute when prosecution is authorized by the legislature versus an executive seeking to prosecute when that prosecution is not legislatively authorized. The former is a recognizably executive action, not a legislative action; the latter would indeed be an executive exercise of legislative power. That one does not approve of President Obama’s use of executive discretion in refusing to prosecute certain categories of individuals does not perforce make his actions unconstitutionally legislative.
I don’t think President Obama’s action threatens the separation of powers; the ability of the executive to act independently of the legislature is a consequence of a separation-of-power system not a threat to it.
This brings us to the separation-of-power question itself. Dr. R. Albert Mohler Jr. president of the Southern Baptist Theological Seminary, opined recently:
Let’s just remind ourselves again that the separation of powers written into the United States Constitution was dependent upon the Christian worldview. The understanding especially of the fact that sin corrupts all centers of power and that if these centers of power are unchecked, the sinful results will be inestimable and horrifying. That’s why they developed the system of the separation of powers with the judicial branch, the executive branch, and the legislative branch, each acting as an important constitutional actor in our political stage; each checking the power of the other.
First, we should note that in the oft-quoted passage in Romans 13, that the “governing authorities” do “not bear the sword for nothing,” Paul’s imagery here particularly invokes executive action; it is the executive who bears the sword in order to execute policy. The “Christian worldview” initially affirms that the magistrate is empowered with the sword in order to oppose sin and to promote good. In the context of the U.S. national government, I think that it is legitimate to ask whether there is so much separation of powers, so much gridlock, that it debilitates achieving government’s primary purpose.
That aside, the fact is, ironically, that Mohler is criticizing the executive part of the U.S. national government for failing to exercise power. His argument is that the president is checking power when Mohler wants him to be exercising that power.
Secondly, the framers did not simplistically celebrate the separation of powers. There are several aspects to their thought on this. We need to keep in mind, first, that the framers intentionally created a more powerful, more effective national government in replacing the Articles of Confederation with the Constitution.
The framers expressly recognized the need not just for separated institutions sharing power (to borrow Richard Neustadt’s phrase) but the critical need for energetic government as well. Madison writes in The Federalist 37:
Among the difficulties encountered by the convention, a very important one must have lain in combining the requisite stability and energy in government with the inviolable attention due to liberty and to the republican form. . . . [T]hat it could not be easily accomplished will be denied by no one who is unwilling to betray his ignorance of the subject. Energy in government is essential to that security against external and internal danger and to that prompt and salutary execution of the laws which enter into the very definition of good government. . . . On comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once the difficulty of mingling them together in their due proportions. . . . [E]nergy in government requires not only a certain duration of power, but the execution of it by a single hand.
Interestingly, Madison leaves unanswered the question of whether the constitutional convention “succeeded” in balancing achievement of these various goals in the Constitution, leaving it to experience and history ultimately to answer.
But, again, ironically, Mohler’s criticism is not really that President Obama is being too energetic, and thereby threatening the separation of power system. Mohler’s criticism is that the President is not being energetic enough. His position is that the executive should be more subordinate to the legislature than President Obama is actually being. His actual argument seems opposite to the one he thinks he’s making.