Suing the president won't make Congress work. Photographer: MANDEL NGAN/AFP/Getty Images
Suing the president won't make Congress work. Photographer: MANDEL NGAN/AFP/Getty Images

I’m enjoying a fascinating conversation about the presidency this week. It was sparked by a Ross Douthat column on Sunday that charged President Barack Obama with unusual (potential) overreach in considering executive action on immigration. Douthat’s original (though shrill) column is worth a look, as is Brian Beutler’s response, and Douthat’s more sober follow-up blog post today. Ezra Klein’s musings today were especially thoughtful, and worth reading even if you want to skip the rest of it.

First, some throat-clearing, because I know many of you are interested in one specific question: How has Obama’s use of presidential authority compared with that of his predecessors? I’ve been saying that what Obama has been doing is “perfectly normal” and that there’s “zero evidence that Obama has been unusual in his use of executive powers,” though “it is possible that in specific instances, the administration may have acted beyond what the law allows.” Presidency scholar Andrew Rudalevige reaches more or less the same conclusion in a recent in-depth article. Again, that’s no defense of any of those specific (possible) cases of overreach; it's also no defense against a general complaint that modern presidents push the boundaries of their office.

(On the other hand, see also Rudalevige’s Monkey Cage post today, in which he points out that the liberal talking point that Obama hasn’t issued very many “executive orders” is pretty meaningless.)1

Back to Ezra Klein, who makes an excellent point about a gridlocked Congress:

We've chosen a poor metaphor to describe congressional dysfunction: gridlock. As anyone who has tried to drive the Beltway at rush hour knows, gridlock is what happens when nothing moves. You just sit on the highway cursing your fate. But that's not what happens when Congress collapses into inaction. Instead, action takes the city streets. That's in part because a big chunk of Congress wants it to take the city streets.

Just as Congress is too divided to do anything; it's also too divided to stop the other parts of government from doing something.

I strongly agree that it’s bad when “power flows away from Congress,” and that no one, liberal or conservative, should welcome “the steady expansion of the president's powers.” Indeed, as much as expanded presidential authority is problematic, even worse are the other effects of congressional dysfunction: fewer challenges to judicial and bureaucratic authority.

What’s missing here, however, is that this isn’t so much a Congress story as it is another story about the broken Republican Party.

Take, for example, immigration. It may not be clear exactly where Obama’s authority ends. But it is almost certainly true that he has some legitimate discretion, and that using it may well produce a policy outcome that would be worse for mainstream conservatives than what they could get by cutting a deal in Congress. The same is true on climate, where sweeping new regulations, almost certainly allowed under current law, will produce an outcome Republicans will hate.

In many areas, it’s likely that Democrats would accept a half-victory enshrined in law over a “better” policy result achieved by executive action. Not just because a Republican president could repeal Obama gains, but because going on those side streets is usually an inefficient way to get where one wants to go. That certainly appeared to be the case with immigration. The bipartisan bill that passed the Senate wasn’t what liberals wanted, but they were willing to make significant concessions to win several Republican votes.

And yet, in policy area after policy area, House Republicans have said, and demonstrated, that they prefer a worse (for them) substantive result as long as they don’t have to vote for it. Avoiding compromise avoids their greatest fear -- being labeled “RINOs”-- while allowing them to rail against a “lawless” president. As irresponsible as that might be from the point of view of individual House Republicans, the fact is that their party has set up an incentive structure that pushes them in the “post-policy” direction of choosing symbolic wins at the cost of substantive losses.

If that sounds familiar, it’s the same logic that led Senate Republicans to brinkmanship over nominations, and to eventually accept a Senate in which they had less party and individual influence. They preferred to be free -- both before and after the Democrats eliminated de facto supermajority confirmation of nominations -- to just plain oppose, instead of having the responsibility of using their (limited but real) influence strategically.

It’s also, of course, the same logic behind the Republican House-driven lawsuit against the president that promises more influence for the courts, instead of finding a way to work with Democrats in Congress to rein in Obama’s (supposed, but surely in some cases real) overreach.

So, yes, what’s happening in Congress is absolutely bad for Congress, and bad for the U.S. political system. But it’s not really about Congress, or even about partisan polarization; it’s yet another consequence of a broken Republican Party.

1 Another point: Although the general topic of presidential authority and overreach may be a constitutional question, many of the issues raised are about statutory interpretation; that is, what do particular laws really set in stone, and what do they leave to executive discretion when implementing them. So we really can’t talk about whether presidents are exercising broad discretion in the abstract; what matters is how broad those actions are compared with what the specific law in question allows. And, like it or not, laws are often vague, leaving reasonable arguments on both sides for what is allowed.

To contact the writer of this article: Jonathan Bernstein at Jbernstein62@bloomberg.net.

To contact the editor responsible for this article: Max Berley at mberley@bloomberg.net.