(As the careful reader may already have noticed, I raise all of this in a spirit of irony, in the attempt to point out Yoo's hypocrisy; but now that I write it all out, I must say, it strikes me that there is actually a perverse consistency to it-- but more on that in a minute).
Yoo is not unaware of what might strike some observers as the shifting grounds of his arguments. In fact, he appeals to this fact as a source of special authority. He and his co-author brandish their credentials as consistently inconsistent opponents of executive power, writing: "As former Justice Department lawyers who [...] have defended a vigorous executive branch [...] we believe that Obama is violating the Constitution and that Congress and the courts must respond." We are meant to think: See, John Yoo is a reasonable man. He admits that the executive branch should be "vigorous"-- as in, it should vigorously clamp asphyxiating cloths over people's mouths to simulate drowning, or perhaps vigorously deprive them of sleep until their wills are broken or their minds are gone (in the fashion of Rubashov's captors in Darkness at Noon). He just doesn't think it should show so many signs of life that it abdicates its authority to forcibly deport 5 million people. (Here is roughly where that shrieking mentioned above should kick in.)
Ross Douthat, to his credit, is at least willing to provide sauce equally to both the goose and the gander, over at the New York Times. His condemnation of what he sees as overreach in Obama's immigration action is only a minor part of his critique of the "imperial presidency" as a whole, the broad outlines of which are very hard to dispute. Douthat sees signs of a fatally metastasizing executive power in drone strikes, war-making, and the prosecution of whistleblowers, for instance, and not just in executive action on immigration. I admire him more than Yoo, obviously, but must ultimately defend Obama's actions, for reasons I will lay out in this post.
Like Douthat, and most of the other people who have weighed in on this question, I am not a constitutional or legal expert. I know very little about the traditional licit extent of "prosecutorial discretion"; nor do I know anything about what distinguishes immigration enforcement from other kinds of regulatory enforcement with which the executive is charged. Kevin Drum has hunted down some appropriate readings on both points, and I won't try to repeat (or summarize) his efforts.
I notice a few things at once, however, that seem to distinguish Obama's deportation deferrals from the other policies of an "imperial presidency," such as drone strikes. For instance: whereas the latter are often in violation of international human rights standards, the former brings our immigration policy a few hairs closer to being aligned with such standards. Whereas the latter is an expansion of executive power, the former is a partial abdication of it (even if carried out unilaterally). Whereas the latter rains death on people from the skies, the former allows innocent people to remain in their homes.
This is where John Yoo may actually have consistency on his side, even if Ross Douthat has greater humanity on his. Yoo, in spite of his perverse manner of arguing the point, actually appears here as a consistent proponent of the expansion of the executive power, even to the point of violating human rights.
One can debate, of course, how much Obama's actions actually achieve -- and whether they are not at last more sop than substance. Here is an area where conservative pundits, in their desire to make a fool out of Obama, are likely to throw good arguments to left-wing immigrant rights advocates, without intending to do so. Indeed, it seems hard to argue with some of the points raised in a National Review column about the deferrals, which holds that deferrals based on "prosecutorial discretion" will only ever be as certain as the prosecutor's whims in each instance -- which is another way of saying they are not certain at all. The authors cite a DOJ memo on the subject that explicitly retains the authority of the executive to make "case-by-case determinations" about the potential revocation of the deferral. This is hardly likely to secure peace of mind to undocumented people and their families.
Yet all it really proves is that we have even more reason to continue to try to bring our immigration laws into step with human rights standards -- and makes me all the more pleased that Obama's action has made it at least slightly less likely that deportations will occur, however shaky the ground on which his promise rests.
Can an executive justly surrender certain powers that have been granted it by the legislature, if these powers exceed the limits of international law? The problem arises so infrequently that I had never really thought about it before. One doesn't hear often of premiers or potentates unilaterally opening their prisons and letting the dissidents go free. My instinct, however, is to say that we'd regard such an action as heroic, if it did occur, whatever the motives behind it might have been. It could scarcely be seen as a blow to legitimacy or the "rule of law," when the laws that it violates are themselves illegitimate and in violation of international norms. Employing executive power to draw limits to itself seems not an abuse of that power-- it cannot even, pace Douthat, be said to be an expansion of that power.
There are plainly limits to this moral freedom of the executive to enforce or not enforce the law, but I set those limits at the law of nations, not at the law of this one particular nation.
Douthat might object to this sort of abstract cosmopolitanism. He is no doubt skeptical of asserting as absolute "rights" in all contexts prerogatives that have in fact grown up out of a particular legal culture. There is a reason he refers to "Burkean traditions" as among those things that Obama's "imperial presidency" has violated.
To his (imagined) point, there is perhaps too much temptation in our politics today to turn what may in fact be a matter of reasonable disagreement into one of fundamental rights. Liberals do it often, but, tu quoque, conservatives, who maintain that taxation is theft and so on. Besides, the distinction between rights and policy is in some sense fallacious anyways, since even the most basic human rights are not ideologically neutral, but arise out of a particular -- and debatable -- view of the world. My response to the imagined Douthat argument is not to deny these things, but simply to assert that the rights at stake in Obama's executive action really are fundamental enough to require unilateral protection, for reasons I will come to at the end.
As for the rest, let me just say that the Burkean verdict on whether or not it is just to enforce our immigration laws has not yet been delivered. I for one think that verdict would come down on the side of mercy. I think, in fact, that the human rights claims I am making in this post can be justified on Burkean as much as on cosmopolitan grounds, because my argument asks us to start by paying attention to real world conditions and drawing policy from them, rather than reasoning from abstraction to reality.
Abstraction in these matters may well be on the side of enforcement, in fact, and not on the side of deliverance. If I were pressed to argue the point on surely theoretical grounds, after all, I would probably acknowledge that a nation has some legitimate right to police its borders and to limit the number of people who are permitted to enter it. In the realm of abstraction, the enforcers probably have the upper hand, as they have been quite pleased to reveal.
If anyone in this dispute has been arguing from first principles to abstract conclusions, and proceeding to sacrifice real people in the real world to the latter, it has been the advocates of enforcement, and not those of greater clemency in our deportation policy.
This is not to say I'm wholly abandoning the cosmopolitan version of the argument. The human rights issues involved in deportation do enter in part through our conventions and laws, in my view, and I've laid out what I take to be this side of the picture elsewhere, if you want to revisit it. Most of my argument on this point was indebted to Human Rights Watch, which has pointed to such guarantees in international law as the right to a "private life" (which they conclude is violated by breaking apart families through deportation) and the right to equal access to the justice system (which is scarcely guaranteed to undocumented people in the United States so long as they must live in fear of having any contact with that system).
But the real, the chief reason why I think that Obama's actions are justified-- why I think they have violated an enforcement apparatus that was morally illegitimate to start with -- is a Burkean one. It has little to do with abstract rights of nationality or metaphysical claims of certain peoples to particular plots of land. (Those of the very things, arguably, that have created the human rights crisis in the first place.)
It has to do instead with the simple fact that here, in the real world, there are presently 11 million undocumented people living in the United States. 11 million people who have the same feelings everyone else does, who are attached to their friends and loved ones and places of residence. These 11 million people either have a legal right to be here or they do not. If they do not, then the law is "obliged," at least formally, to uproot them and send them back across the border. This would necessarily and in itself involve the massive infliction of suffering on innocent people. It therefore seems to me that it cannot be correct to say that undocumented people do not have a right to be here; because there is no moral obligation under heaven that compels a state to inflict that much pain. It is from this reasoning, not from international conventions, that I derive my support for Obama's actions.
There have been many attempts to define national rights in the last century, and to determine what peoples have rights of "self-determination" over which lands. Whose "self," I always want to ask? Do I share a "self" with other English-speaking, historically Protestant white Americans, but not with black or Catholic or German- or Portuguese-speaking ones? Have I "determined" my own system of government adequately if I am ruled by a white autocrat, but not if I am ruled by a non-white representative for whom I cast a ballot?
The truth is that a people cannot be said to possess any metaphysical claims to particular lands. But people in general have a moral right not to be made to suffer unduly and past all tolerance. It is from this latter point alone (or at least, primarily) that people derive their right to stay put in whatever place they have found themselves long enough to form real and long-standing attachments to it.
Kris Kobach, the Kansas Secretary of State who also doubles as right-wing disc jockey with his own call-in show, recently delighted liberal re-tweeters and email correspondents across the nation with a bizarre comment he made on the radio, in which he appeared to suggest that Obama's executive deportation deferral could lead, indirectly, to a so-called "ethnic cleansing" against white Americans. In response, Kobach has denied the interpretation that has been placed on his words (though it appears to have been a fairly literal one). And in his defense, he does appear to have first offered the remarks in the context of trying to talk down one of his radio callers from an even more vertiginous precipice of insanity.
I don't raise the incident for the sake of sniping, therefore -- I raise it for the sake of the segue. Because the whole ghastly, tragicomic, laughing-to-keep-from-crying irony of the remark stems from the fact that if anyone is threatened with ethnic cleansing in this situation, it is plainly not white citizens, but the undocumented immigrants faced with deportation!
I do not think it trivial, nor an abuse of language, to say that the forced eviction of 11 million people from this country on the basis of their national status, if it were ever to be carried out, would be an ethnic cleansing. At the very least, it would be something that was brutal and rotten for the same reasons we would apply these epithets to ethnic cleansing. An ethnic cleansing in its formal definition does not necessarily involve deliberate killing-- it can often take the form of forced displacement alone, and I insist that the deportation of all undocumented American immigrants would probably rival in scope and consequences some other events of modern history that have been justly described as ethnic cleansings. 11 million people, after all, is only one million less than the total number of ethnic Germans the Allies uprooted and resettled after the Second World War (of whom 500,000 died in the process). It is more than ten times the number of Palestinians who were deprived of access to their former homes after the 1948 war. It is more than twice the number of people displaced by the Balkan wars of the 1990s.
Of course, we never are likely to deport all 11 million undocumented people, regardless of who sits in the White House. Here again is where Burkeanism does not appear to be on Douthat's side; because tacitly, the government always has recognized some practical limits to its absolute prerogative to deport undocumented people. In most instances, the state merely dangles the possibility of such a dramatic population transfer over people's heads, while actually mitigating the extent of its immigration enforcement in practice. Obama's executive action, while it admirably steers us further in the direction of mitigation, is mostly more of the same.
It should horrify us quite sufficiently, however, that our laws formally oblige us to carry out an ethnic cleansing, even if it is unlikely our government will ever execute these laws to the letter. It should upset us that there are significant bodies of opinion in our country that would like us to carry out the forced transfer of 11 million people, even if the full scope of such an atrocity will probably not be carried through.
It may be objected at last that deporting undocumented immigrants would not be the moral equivalent of ethnic cleansing, because in the latter case, those evicted have a legal right to remain where they are, whereas undocumented people do not have a legal right to reside in the United States.
Well, here's where the Burkean in me again shows his face. Because it seems to me that the infringement of abstract national rights is not really, or not primarily, what is appalling about the forced evictions of large populations, whether these are carried out for avowedly "ethnic" or for some other reason. What is chiefly and above all appalling about them is simply the vast suffering they inflict on large numbers of people.
Besides, laws can be written so as to violate human rights. If our immigration laws fall into this category, they would not be the first human artifacts to do so. It is even possible to write laws that seem to compel ethnic cleansing. The question is whether such laws ought ever to be obeyed, by the executive or by anyone else. Obama gave a negative answer to that question this week, and I thank him for it.