Respect for our constitutive system can be as important as positive constitutional law. Positive constitutional law is written and, if a plaintiff has standing, is likely to be enforced by the judiciary. Our constitutive system, by contrast, is either unwritten or at least unenforced by the judiciary. Order in this system is maintained by the statesmanship of the political branches.
Peter Schuck, a supporter of the President and proponent of immigration reform, has ably articulated the problems of the President’s executive order on deportations as a matter of positive law. But whatever its positive legality, the President’s decision to defer the deportation of millions of undocumented immigrants does not respect our constitutive system.
It was inevitable that some supporter of President Obama’s would come along and compare his executive action on immigration to the most famous executive order of them all, President Lincoln’s Emancipation Proclamation. Yale law professor Bruce Ackerman has done the honors, and his comparison is, not to put too fine a point on it, weak.
The political puritans who control most editorial boards will doubtless mourn the tragically short life of the ardently sought détente between the White House and the ascendant Republicans in Congress. The good-government words were trotted out the day after the election—cooperation; grease the Capitol’s rusted legislative skids; we can hold hands to pass legislation and sing folk songs while we do—only to collapse under the President’s threat of unilateral action on immigration. Good. The good-government shtick—let us, said the President, “explore where we can make progress”; Mitch McConnell chimed in that “maybe there are things we can agree on to make progress for the country”—was nonsense to begin with.
In his sane and thought-provoking Liberty Forum essay about immigration, Richard Samuelson argues that “America’s very essence” may well be “at risk” because of “two challenges to our status as a nation of immigrants.” They are “the rise of the mega-state” favored by Progressives, and “the rise of a post-national ideal” that “threatens to undermine the understandings that have made assimilation a duty and an obligation.”
President Obama would like to legalize the vast majority of immigrants who came into this nation illegally. Indeed, his commitment is so strong that he appears to be considering suspending deportation and giving work authorization to a large number of them this fall. But the President’s immigration policy is in tension with his economic policy. Labor market restrictions and other burdens on companies – imposed and proposed – make it less likely that these immigrants, most of whom are relatively unskilled, will be able to find steady work. As a result, they are less likely to be assimilated into American society—a harmful result not only for immigrants but also for the rest of us.
For instance, raising the minimum wage makes it harder for the least skilled workers to find jobs, particularly in age when it is increasingly possible to substitute technology for unskilled labor. The President’s advocacy of a much higher national minimum wage is especially harmful. Many of the immigrants live in low cost jurisdictions, like Texas, where the distorting effects of a high minimum wage are the likely to be greatest. The disproportionate effect on low-cost-of-living states is no accident. The President was elected largely by states with higher costs of living, where the additional costs often stem from onerous regulations. These states want a national minimum wage to stem competition from lower cost jurisdictions.
A plausible interpretation of America and the world at the moment is that the imperatives of the 21st century global marketplace are so powerful they trump anything religious and political leaders say or do.
Techno-economic change does not, to be sure, trump anything and everything that nature might do. We recently had the near-miss of the stormy sun disrupting our electric grid and plunging us into the 18th century, and experts think there’s a 12 percent that could still actually happen over the next decade. That’s a lot more scary, if you think about it, than the possible long-term effects on the climate of anthropogenic global warming, although I’ll admit there’s an inconvenient truth or two there, too.
There’s also, of course, the disturbingly successful indifference of Putin and ISIS to the market, and the maybe more disturbing agility by which the Chinese manage to be both authoritarian nationalists and techno-cagey capitalists.
Two years ago, President Obama adopted the DACA Program, which announced an enforcement policy that “defers deportations from the U.S. for eligible undocumented youth and young adults, and grants them access to renewable two-year work permits and Social Security Numbers.” It has often been said that there is no way to challenge this program, since no one has standing. But I wonder whether this is true. Imagine the following scenario. An employer interviews to fill a position and ultimately decides to hire A, with B his second choice. A is an individual who has a two year work permit under the…
Hayek argues that international or inter-society competition will cause regimes to evolve for the better through natural selection: Most of the steps in the evolution of culture were made possible by some individuals breaking some traditional rules and practicing new forms of conduct - not because they understood them to be better, but because the groups which acted on them prospered more than others and grew. I take the argument to be that when one or a few societies stumble on sound rules, their innovations will spread to others by competitive selection. My object here is to reflect on how (if at…
Federal law (the Controlled Substances Act) prohibits the possession, use, sale etc. of marijuana. What to do about state laws, such as Colorado’s, that not only permit but affirmatively license (and regulate) this commerce? For an instructive discussion of the legal problems, see this debate, co-sponsored by the Federalist Society and the Center for Business Law and Regulation at Case Western Law School (headed by the excellent Jonathan Adler, who organized and moderated the event). Most conservatives, myself included, find this difficult. On one hand, why shouldn’t states be allowed to have their own laws on marijuana, just as they do…