Playing politics with the law?

Correction to this article

“CONGRESS now faces a moment of decision between exerting its full authority…or accepting a dangerous expansion of executive branch authority.” Thus Darrell Issa, a Republican congressman from California, made the case for finding Eric Holder, the attorney-general, in contempt of Congress. On June 20th the committee Mr Issa chairs approved a resolution against Mr Holder for failing to produce documents it had subpoenaed. On the same day Barack Obama, for the first time in his presidency, cited executive privilege as a justification for withholding the documents. What with an ongoing row about the president's habit of using executive orders to bypass congressional opposition to his policies, Mr Obama and the Republican leadership in the House of Representatives are on the verge of a constitutional showdown.

It is a battle the Republicans will not win. If the full House, as is likely, now votes to hold Mr Holder in contempt, it will in theory fall to federal prosecutors to bring him into line. But in similar spats in the past, the prosecutors, who after all work for the president, have been inclined to accept the claim that releasing records of the internal deliberations of the executive branch would make it difficult for the president and his advisers to do their jobs.

Similar legal obstacles will prevent the reversal of any of the disputed executive orders. Steve King, a Republican congressman from Iowa, says a change in immigration rules that Mr Obama recently announced is a usurpation of Congress's right to set such policies; he plans to sue the president to stop it. But he will have a hard time establishing himself as an injured party with standing to bring the case. Even if such a plaintiff could be found, the courts are generally reluctant to take sides between the president and Congress.

The row involving Mr Holder centres on a botched operation to curb gun-running from America to Mexico run by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), a division of the Justice Department. ATF agents allowed 2,000 guns to be smuggled across the border in an attempt to learn who was behind the trade. They soon lost track of the guns; two subsequently showed up at a shoot-out in which a Border Patrol agent was killed.

When Congress originally asked the Justice Department about the operation last year, it first denied that the ATF had permitted any smuggling to proceed before reversing itself ten months later. The department has since provided the committee with 7,600 pages of documents related to the operation, but Mr Issa, on the lookout for a cover-up, has asked for more. He is especially curious about how and when the department realised it had misled Congress and what discussions led up to its decision to come clean.

But it is Mr Obama's shift on immigration that Republicans see as the biggest affront, in part because it seems like such a naked ploy to ingratiate Mr Obama to Hispanic voters. Even though Congress has rejected legislation granting an amnesty to “dreamers”—the 1.4m or so otherwise law-abiding people brought to the country illegally as children—he plans to give them a reprieve anyway. On June 15th he instructed immigration officials not to deport illegal immigrants who had arrived in America before turning 16, provided they meet certain criteria. Instead, they will be allowed to remain in the country indefinitely and to apply for work permits.

The administration argues that the change is simply an exercise in “prosecutorial discretion”. The government cannot possibly find and deport all 11m-odd people in America illegally (to deport the dreamers alone would eat up the entire immigration budget, according to the Centre for American Progress, a left-leaning think-tank). Instead, it must choose which offenders to concentrate on, and blameless youth do not seem like a high priority.

Moreover, Mr Obama said when announcing the shift, he was acting in part because Congress had neglected to. It has taken up immigration reform several times in recent years, but failed to enact anything. In 2010 majorities in both chambers approved the Dream Act, a more generous variant on Mr Obama's new policy, but Republicans filibustered it in the Senate.

Nonetheless, many Republicans have declared themselves shocked by Mr Obama's gall. John Yoo, a former official in the administration of George W. Bush, who argued that the president has the power to torture terrorism suspects, detain them without trial and eavesdrop on American citizens without warrants, thinks that Mr Obama's new immigration policy is far more sweeping in its implications than all that. It “violates the very core of his constitutional duties,” he writes.

Despite such talk, however, presidents have often sparred with Congress over the implementation of laws, notes Kenneth Mayer of the University of Wisconsin-Madison. Thomas Jefferson called off all prosecutions under the Sedition Act when he became president, and pardoned those already convicted. Mr Bush often issued “signing statements” as he approved laws, asserting that certain portions were unconstitutional and so unenforceable.

If anything, there are likely to be more such clashes over the coming months, suggests Norm Ornstein of the American Enterprise Institute, another think-tank, since they provide the president with a triple benefit. He gets to push through policies that Congress opposes, rally particular constituencies (Hispanics, in this case) and appear assertive and presidential—something that might improve his standing with all voters. Thus the president has curried favour with gays by refusing to resist legal challenges to the Defence of Marriage Act, which bars the federal government from recognising gay marriages; he has insisted that health-insurance policies offer contraception free of charge in an effort to appeal to women and has rejected an application to build an oil pipeline from Canada, to the delight of environmentalists—all in the face of Republican outrage.

In the end the Republicans are likely to put up only token resistance, in part because some of the president's moves are popular (two-thirds of Americans approve of his clemency towards the dreamers, for example). Mainly, however, they worry that a legal circus will only distract attention from their favourite theme: that Mr Obama has mismanaged the economy.

^{Correction: It was Congress, rather than Mr Issa's committee, which asked the Justice Department about the ATF's operation to curb gun-running from America to Mexico (see fifth paragraph). This was corrected on June 22nd 2012.}