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Obama needs naysayers on executive action

Jonathan Chait writes that liberals should oppose President Barack Obama’s expected executive action on immigration, even though he accepts that such action “rests on solid legal foundations” and would be good public policy.

His argument against it is that it would be norm-violating. If I’m reading him correctly, Chait believes that norm-violating is bad per se, and that it’s bad for liberals because this particular violation would set a precedent that future Republican presidents would exploit.

The latter argument doesn’t convince me. The party of the “unitary executive” is unlikely to need precedents to break norms, and the party that invented the tyranny of “czars” is unlikely to care about whether any precedents it cares to cite are relevant.

The claim that norm-violating is simply a bad idea, even if the specific action is legal, is a much stronger argument. Something fundamental is missing, however: What specific norm is being violated? Presidents have long pushed to the limits of the letter of the law in choosing what they can do.

As Chait acknowledges, selective enforcement isn't just nothing new, but a necessity in many cases, including immigration. His case seems to be that publicly acknowledging selective enforcement with a formal policy would be different. After all, the Internal Revenue Service doesn’t announce that it won't audit the classes of taxpayers that, in fact, have no practical chance of being audited.

Perhaps, but as norm violations go, that doesn’t seem like much to me.

Stepping back: How should presidents approach such decisions?

For one thing, presidents should install excellent, honest-broker lawyers in important decision-making posts -- and then listen to them. Honest lawyers, not yes men. Presidents need to be alerted when they are bumping up against the law, and, yes, in danger of violating norms. Lawyers who see their jobs as enabling whatever the president wants are worse than useless; they rob the president of an important source of information.

For another, presidents need to learn to listen to pre-emptive protests against their actions. That’s extremely difficult to do. Good presidenting certainly doesn't require backing off whenever anyone objects to a policy, whether it’s on substantive or procedural grounds.

But presidents shouldn't ignore strong procedural objections. Sometimes they draw attention to something that could lead a president into trouble. What then? Perhaps there’s a better path to a similar substantive result. If not, then a wise president will add procedural difficulties and risks to the cost side of the ledger, and be prepared to retreat if the benefits are no longer worth it.

And these kinds of objections can come from outside or inside the administration, and can be voiced either by those with an obvious substantive interest in the policy outcome, or those without such an interest.

Learning how to listen to all of those voices, and to recognize potential harm and weighing its importance, is one of the vital skills of the presidency.

Bernstein is a columnist for Bloomberg News.

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