Monday, December 15, 2014

On Limited Government, Unlimited Government, and Immigration Reform

I thought about posting this as a Facebook status, but then it got longwinded and I realized that I had already given this perspective multiple times to past Civics (or, in our school, American Government) students, albeit in a somewhat altered form.

Recently, there has been a lot of coverage of the President's decision to extend amnesty, using the powers of the executive branch, (although, given that he is merely not enforcing the law against those accused rather than forgiving them, amnesty is not a very precise term) to certain classes of undocumented immigrants. The battle cry on the part of many Republicans has been "separation of powers" and "executive overreach" for this illegal action. And it does, in fact, raise questions about the effectiveness of our system of checks and balances in stopping the President from deciding when he will and will not carry out the law.

Although there are many different forms of government--constitutional monarchy, representative democracy, parliamentary democracy, semi-presidential democracy, absolute monarchy, federal, etc--there are in fact only two different approaches to government: limited and unlimited. These two different approaches are not particularly tied to one form or another, although it is difficult (outside of the realm of Tolkien's Middle Earth, perhaps) to imagine an absolute monarchy in a limited government or a presidential republic in an unlimited government. 

These two approaches will eventually color the entire system of governance. A limited approach to government basically assumes the autonomy of the individual units of a society: the citizen, the family, the business, the Church, etc. The government, considered as the sum total of those who, through various offices, control the secular state, is therefore limited to specific roles, and in those roles, constantly scrutinized through a redundancy of various branches. Thus, for example, the executive branch, which has the duty of carrying out the law, will be checked by the judicial branch before they can actually carry out the law in terms of punishment, and the legislative branch will be prevented from enacting whatever laws it wants by, on the one hand, the right of the judiciary to make sure that the laws correspond with the appropriate powers of government, for example, by making sure that laws are in accordance with the Constitution, while most limited constitutions provide for some kind of veto exercised by the executive branch. It is equally important, in terms of maintaining a limited government, that each of the various branches, however they are divided, are elected or appointed by separate procedures. This is the system that we have in the United States.

An unlimited government, on the other hand, assumes that the State is a total entity, consisting of various parts: the Church, the secular government, the family, etc. All of these are units of the whole, usually represented (at least ceremonially) by a single figure, such as a King, or in socialist countries, by the Party. In democracies, the People would take this role. In an unlimited system, the various branches are checked by a single entity, sometimes not the entity that is actually invested with responsibility for the whole state, as for example in Great Britain where Parliament holds near-absolute power, through the Crown, over Church, State, family, individual, etc.

The difference between these when it comes to issues like the one that I mentioned above cannot be overstated. If a Prime Minister, against the wishes of a majority in the U.K. House of Commons, went ahead with overlooking the execution of this or that immigration law, he would probably be subject to a vote of no confidence, have to tender his resignation, and conduct new elections for the House. He is always checked by that higher authority which, it is assumed, represents the majority of the people's interests (whether it does or not). Likewise, if the House of Commons decided that judges were interpreting laws a bit too liberally, they might dissolve an entire court system and choose a new one with new judges who would behave like they wanted them to.

On the other hand, in our limited system, if the Congress wishes to prevent the President from carrying out a law in a particular manner, the Constitution gives them very little recourse, since the execution of laws (the very laws that they write, oddly enough) is assumed not to be any of their business. They are given basically four options: they can sue the President in the courts (which almost never works because of the assumed separation of powers), they can deny funding to his executive priorities (which also never works because they would have to pass a law to that effect, which the President would almost certainly veto), they can subpoena his officers (who will probably plead "executive privilege") and make his life difficult for items on his legislative agenda (which he will just do back to them), or they can impeach and remove him (which they almost never have enough votes to pass and has never been done in the two hundred twenty-five years of our Constitution).  Likewise, if they don't like how the courts are interpreting the law, they can basically complain and hope for the appointment of better ones after the next election.

To summarize, we can say this: In an unlimited system of government, a particular branch has almost total control of the state, but no one component of the state is ever unchecked by that one component. While in a limited system of government, despite the fact that checks and balances exist, the individual branches are pretty much left to aggregate power on their own, unchecked. This power will usually fall on the branch of government that appears to have the clearest mandate from the electorate, whether that electorate is the people or a junta of military leaders or a King.

That is ultimately the source of this, and almost every, conflict that has occurred as a result of an expansive or "imperial" Presidency in the United States. Contrary to the arguments which one can read in the Federalist Papers, the Presidency is actually a sort of German  monarchy, limited in its ability to enact its agenda by certain Constitutional forms, but ultimately holding the position of supremacy over the government. In fact, one might argue that, although the Federalists were politically motivated to argue that separation of powers would lead to real checks on the various branches, many of them, especially Hamilton, already saw that the state which they had created would be led by a single, powerful (and unelected) President with powers that were limited only by formal procedures. Certainly Hamilton had no great love for democracy.

A limited government will ultimately only function as a group of bodies checking and balancing one another if, and this is the key, all of the members of each branch of government are agreed that this is what they should be doing. In other words, they all must agree, amongst themselves, not to try to score political points by failing to check one another. For example, too often the Congressmen  are worried about putting a  President of their own party in an awkward political position so that he can't carry out the party agenda as effectively, while on the other side of the aisle, and adverse Congress will pass laws that are popular but clearly opposed to the President's ideology just to embarrass him and score political points. This particularly happens when the two parties differ widely on fundamental values (as they do in American politics). We cannot, as a society, even agree when life begins or whether a dead person has finally escaped from taxation. Moreover, our society is so media-saturated that politicians are not eking out political power in Washington, D.C. anymore by causing other politicians trouble, they are scrambling for it in opinion polls and 24-hour news networks, which means that they feel even less safe leaving the boundaries of party orthodoxy.

The only way for Congress to restore balance to our system, then, is to try to become as popular as the President, not an easy task for a body that regularly polls at less than 15% favorability or less. People like democracy, but they don't particularly like watching it happen, which is part of the reason for this discrepancy. The Congress must act in such a way that they show that they can lead the government, that the majority of people have confidence in them, and that the Presidency is a useless position without the help of the legislative branch. That is a very tall order.

Now let's make an assessment of the President's decision and what should be done about it. I would say that Congress has only one way to make itself the representatives of the People and so fight the President for leadership of the government, which is, in fact, what this fight is all about. They should de-fund the President's amnesty program and pass one of their own, protecting the same people (if not more) and accomplishing the same goals, but forcing the President to appoint new officers to the various administrative positions that this type of law would entail. This would make him have to submit to Congress on the timing of the implementation and give the voters a chance to make their voices heard as regards those officers. I don't think that Constitutional bickering will accomplish anything in terms of restoring the balance of power unless they actually appeal to the people on whose sovereignty the constitution depends.