By Max Ehrenfreund
Speaking in Las Vegas this week, Hillary Rodham Clinton promised to expand President Obama's proposed executive immigration actions by granting a reprieve from deportation to an even larger group of undocumented immigrants. The former secretary of state's bold speech was a pleasant surprise for activists who support reform, and it stunned her Republican rivals, who have been wary of saying anything that might alienate Hispanic voters.
Yet between the legal restrictions on the president's authority independent of Congress, and likely continued opposition from Republicans lawmakers, there will only be so much that Clinton can accomplish if she wins -- on immigration as on other issues. Obama's executive actions have already put in place much of the Democratic agenda that can fit comfortably within the conventional limits of presidential power without action from Congress. As president, Clinton would be a bulwark protecting the Democratic policies Obama put in place, such as stricter environmental rules and the Affordable Care Act. It's far from clear just where she could achieve more, since Congress will remain at least partially in Republican hands.
Maybe something like: As a result, Clinton might face a choice between simply defending Obama's agenda and defining one of her own by further exploring and possibly expanding the limits of presidential power.
To define and advance her own goals, Clinton will have to further explore and possibly expand the limits of presidential power.
Immigration and families
Her proposal on immigration, for example, is one that Obama's lawyers rejected last year as an illegal overreach.
In her speech, Clinton first reiterated her support for allowing those undocumented immigrants to become citizens, saying she was motivated by concern for the strength of families. "When families are strong, America is strong," she said.
Supporters of citizenship for undocumented immigrants say that deporting parents unfairly punishes the kids who stay behind. Sociologists have foundthat just the possibility of deportation causes anxiety and fear among children who, even at a very young age, are all too aware that their families could be broken up.
Lawyers in Obama's Justice Department followed the same line of argument in their defense of the president's authority to defer deportation for a group of about 4 million undocumented immigrants, including about 200,000 adults who arrived as undocumented immigrants as children, and 3.5 million undocumented parents of children who are American citizens.
Congress had specifically given the president the authority to allow undocumented immigrants to remain in the country for humanitarian reasons, an authority past presidents had used as well, the lawyers wrote. Keeping families together, they argued, was an important humanitarian goal.
So far, Clinton's reasoning followed theirs, but then she went further. She suggested that the parents of undocumented children--the 1.2 million so-called Dreamers whom Obama had already offered a reprieve from deportation--should be allowed to stay, too.
Obama's lawyers had rejected this argument. The simple goal of keeping these families together, they wrote, can't justify allowing them to stay. When both parents and children are in the United States illegally, families can be sent to their native countries without separating loved ones.
Darrell West, a political scientist and an expert on immigration policy at the Brookings Institution, warned that Clinton was making policies on which she might not be able to deliver. Any actions she might take as president would have to pass muster with the courts, which have temporarily held up Obama's more limited plans.
"She's playing in the political arena," West said. "She's trying to use the immigration issue to mobilize her base. There are no penalties to going overboard in that arena."
The speech had clear political advantages for Clinton. Her position could restore enthusiasm to a Hispanic electorate hopeful more can be done on immigration, while exploiting Republicans' vulnerability on the issue. Leading GOP contenders Jeb Bush, the former governor of Florida, and Sen. Marco Rubio (R-Fla.) would not even comment on Clinton's speech. The two men have historically favored a comprehensive immigration overhaul that their party overall has rejected. (Rubio has since distanced himself from reform legislation he helped write.)
"Republicans' intransigence has created an obvious opportunity for Hillary to rip off our arms and beat us with the bloody ends," a former party chairman in New Hampshire told The Washington Post. "She’s expertly exploiting our party’s internal problems."
That is not to say that Clinton's proposal was solely motivated by politics.
"Clinton continues to call for Congress to act on comprehensive immigration reform," campaign spokesman Ian Sams said in a statement. "But she has made clear that, absent congressional action, she will do all she can to fight for DREAMers and to make our dysfunctional system a little more functional."
She might feel that Obama's Justice Department came to the wrong conclusion. The precise legal boundaries of executive authority are nearly impossible to define. And in practice, presidents have been less concerned with legal niceties than they've been about maintaining the allegiance of voters, cultivating goodwill among lawmakers, and respecting Washington's unspoken rules about just who has the power to do what.
Constraints on the presidency
Those rules of power have been smashed in several places in recent years. Filibusters, once a rarity, have become routine in the Senate, as lawmakers on the losing side of legislation have assumed a new power to block it. Sen. Mitch McConnell (R-Ky.) has moved beyond the traditional authority of the chamber's majority leader by writing letters to officials around the country urging them to ignore new Environmental Protection Agency regulations on power plants, which represent Obama's assertive use of executive authority after Congress refused to take any action on climate change.
Since the elections of 2010, Republican dominance in Congress and their unyielding opposition to the president's agenda has forced him to find new ways to achieve his aims. Clinton would likely have to do the same if she succeeds Obama. Republicans will almost certainly retain their majority in the House, and they'll still be able to mount filibusters even if Democrats manage to regain control of the Senate.
Yet finding major new areas of executive action could prove challenging. Clinton's advisers have said that as the candidate talks about families on the campaign trail, one major plank in her platform will be a right to paid parental leave for all workers. It's an idea that has support from the majority of Americans, polling suggests.
If Clinton wins, though, it isn't clear what more she would be able to accomplish for new working parents. Obama recently granted paid leave to federal workers with newborn children through executive action. The president can't make a law requiring paid leave in the private sector without a vote in the House.
Another possible field for executive action under a Clinton administration would be in criminal justice reform. The first major speech of her campaigncould be interpreted as suggesting that Clinton would go further than Obama has in encouraging police departments around the country to adopt more equitable practices.
Using the authority that the president has over federal funding in local police departments would be another expansion of executive power beyond its conventional boundaries. Sheriffs and police chiefs have traditionally enjoyed wide latitude in how they run their departments' affairs and in how they use federal grants of money and equipment.
Obama acknowledged that political reality in his remarks on the riots in Baltimore last month. "I can't federalize every police department in the country and force them to retrain," the president said.
If Clinton wins, she might also be able to make legislative progress in areas where she and Republicans agree, such as tax reform, entitlement spending and free trade, but these are not the issues that will inspire liberal audiences on the campaign trail.
Democrats, of course, still have powerful reasons to want to see their candidate in the White House after the election. It's just that when it comes to domestic policy, a Hillary Clinton administration might be defined by what her victory at the polls would prevent a Republican rival from doing.
Republicans have proposed budgets that would eliminate trillions of dollars in assistance for the poor and in grants and loans for students. As president, Clinton would try to force Republicans in Congress to make compromises on budgetary questions.
A Republican president, by contrast, could undo many of Obama's executive actions, which have been crucial to a wide range of his policies.
"Anything a Republican president can’t get out of Congress, that individual will try to accomplish through executive action," West said. "Obama has set the precedent, and others are going to do the same thing."
Obama's education policy rests almost entirely on his executive authority, and a Republican president would be free to take a different course. Likewise, a future president could partially suspend Obama's health reform law, even if Democrats in Congress continue to stand in the way of repeal.
These maneuvers would be out of Republicans' reach with Clinton in the White House, but if she hopes to go do more, she would have to find new ways of using the power of the office.
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