Is There a Downside to Presidential Nullification?

Post by Nathan Smith (regular blogger for the site, joined April 2012). See:

So I should have known: the most astute analysis of Obama’s semi-amnesty is by Bryan Caplan. In particular, Caplan gets at a thought that was starting to form in my mind, too, namely, what a nice thing a doctrine of presidential “nullification” might be. By “nullification,” I (and Caplan) mean that presidents could just decide not to enforce laws that they disagreed with especially strongly, which is suggested by Obama’s semi-amnesty. Of course, the Obama administration probably wouldn’t want to characterize it that way, and I’m sure the lawyers could develop other, less controversial defenses of the move which would have better (probably almost certain) odds of passing judicial muster. Or in brief: presidential nullification seems to be rather a constitutional innovation, of rather dubious legality, whereas Obama’s move is probably quite legally defensible on other, surer grounds. Still, it might set a precedent that would amount to a kind of doctrine of presidential nullification. Is that something that should make open borders support hesitate in applauding this? OK, strike that, stupid question; it’s pretty obvious that whatever constitutional principles are at stake are less morally urgent than the need to stop deporting innocent people. Let me rephrase: would there even be any significant downside to a doctrine of presidential nullification? Or as Kling and Caplan formulate it:

Kling: My reading of the policy is that the President is nullifying a law by refusing to enforce it.  That is a precedent  that could come back to haunt us.

Caplan: I say the laws on the books are so overwhelmingly wrong that even random Presidential nullification would be a huge expected improvement.  My question for Arnold: What’s the best law any future President is likely to nullify due to Obama’s precedent?  I just don’t see this slippery slope leading anywhere we should fear to slide.

Exactly. What if a President Romney refused to enforce the individual mandate provision of Obamacare? Fine by me. What if a President Romney passed de facto tax cuts by just instructing the IRS not to collect some kinds of tax? Well, 1) that wouldn’t be so terrible, and 2) it seems unlikely to happen.

Obama’s semi-amnesty does seem contrary to the spirit of the rule of law, even if he could probably make a strong claim that it’s legal. But we shouldn’t speak as if “rule of law” is an unqualified good. It depends on the content of the laws. If it’s a choice between a more chaotic situation and a more coercive situation, the former is usually better.

If Obama thinks his semi-amnesty is unconstitutional, as some of his past comments suggests, does that put him morally in the wrong for violating his oath of office to uphold the Constitution? Not really, because deporting innocent people is a far worse crime (morally) than breaking his oath of office. If one promises to do x, and x turns out to be flagrantly immoral, generally one should not do x. (That’s simplifying a bit but it’s good enough for the present case.) Anyway, the 20th-century Supreme Court has made the meaning of the Constitution something of a joke: it doesn’t mean what it means, but what we pretend it means. If you just wanted to give a reason why you think deporting de facto Americans really is unconstitutional, as opposed to a reason that would convince the courts, that’s easy (due process, enumerated powers, general welfare, common defense). And I don’t see why that shouldn’t be enough to defuse the ethical oath-of-office issue. If the voters want to elect someone who understands his constitutional duties differently, let them do so!

The nice thing about presidential nullification is that it’s very clear how it could lead to less coercion (in all sorts of ways), it’s hard to see how it could lead to more. This is a point some commenters miss. For example:

What an awful post!

Caplan seems to have jumped from libertarian to monarchist in fewer than 160 characters.

Or:

And by the way, we aren’t talking about nullification, pardon, or selective enforcement. We’re talking about plainly making out a whole new set of laws and standards for certain classes of people.

Which, ya know, doesn’t seem very libertarian to me, allowing the president to do whatever the hell he wants doesn’t.

Or:

I call this government power bias. That is, we typically do not foresee a slippery slope when a government action is something we happen to agree with. I’m surprised BC exhibited it.

Military action w/o congressional declaration of war. A hit list w/o due process. Nullifying of creditors’ senior claims on assets. The Obamacare individual mandate. A recess appointment the Consumer Financial Protection Bureau (after which I believe the President was one declaring that the Senate was in recess).

What these commenters are missing is that presidential nullification wouldn’t allow presidents to do anything that was not authorized by Congress. Rather, it would allow presidents not to do things that were mandated by Congress. It’s the very opposite of “government power bias.” It is, rather precisely, government non-power bias. The more checks are in places that might prevent the government from doing anything, the better. Recess appointments, military action w/out congressional declaration of war, and the like are certainly not things that could be done by presidential nullification. Criminal acts by the president would not be aided by a nullification doctrine. They’d still be crimes.

I can think of sinister examples of how presidential nullification might work, e.g., deliberate non-prosecution of the murderers of political opponents, but they’re pretty far-fetched. This may be what Matt H is getting at:

Brian,

You might be the definition of a clever-silly. Someone so smart they can convince themselves of anything.

What if Obama really was a socialist, like so many republicans believed and the laws he refused to enforce were laws protecting private property. This is what is going on in Venezuela, A group of red shirt-wearing Chavista thugs show up at a farm and seize the farm, under the pretext that the farm is “idle land” and that the law allows them to take it over for “food production.” Of course the actual government doesn’t stop this kind of thing because they don’t believe in private property. Rich people don’t deserve their land, and a collective farm would be much more efficient anyway.

Don’t like Venezuela, how about Zimbabwe, was killing white farmers legal, no, but the government doesn’t really believe it needs to enforce that law. Now the country is in a shambles.

Obama should be impeached for his refusal to enforce laws that our elected representatives passed. If he believes those laws are unjust he should be willing to pay this price.

Yes, one can imagine the government having informal alliances with violent street mobs and selectively refusing the protection of the law to their victims. Like Zimbabwe; like, I think, Weimar Germany. But there are a lot of other levels of government that could help out, and anyway, it’s just not very plausible that someone like that would get elected in America. I’m not ready to nail my flag to presidential nullification yet, in general. But open borders will require a certain degree of reconfiguration in how power is wielded in the world, and maybe some kind of presidential nullification is part of the solution.

By the way, I would love to see the GOP try to impeach Obama over this. Clinton’s impeachment strengthened him politically and make the GOP look nasty, even though Clinton’s behavior was clearly indefensible. Obama, standing for lofty principles against nasty political opponents obsessed with exiling your kid’s friends to strange Third World countries, would become one of America’s historic heroes, maybe worthy of place on Mt. Rushmore.

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